Taylor v. . Meadows

Stacy, J. Tbe case at bar has been tried three times in tbe Superior Court, and this is tbe third appeal here. Former opinions reported in 169 N. C., 124, and 175 N. C., 373. As desirable as an ending of this litigation would seem, we are unable to sustain tbe following portion of bis Honor’s charge, which was given at tbe request of tbe plaintiffs, and to which tbe defendants have specifically excepted: “That if from tbe calls in tbe deeds and tbe map of survey offered in evidence, and tbe testimony of tbe surveyor explaining such survey, you are satisfied as to tbe proper location of tbe several lines bounding tbe land in dispute, then it would be your duty to act upon tbe same and render your verdict accordingly without regard to tbe oral testimony offered by either side tending to show tbe proper location of tbe line or lines.” *267 Tbis instruction was erroneous, because its effect was to give undue credit to tbe testimony of tbe surveyor. Tbe plaintiffs were not entitled to bave tbe court single out by name any one witness from among all tbe others, wbo bad testified to tbe same matter, and tell tbem tbat if tbey were satisfied from bis evidence, taken in connection witb tbe deeds and tbe map, tbey should render their verdict accordingly. Tbis was in direct conflict witb a number of our decisions. Cogdell v. R. R., 129 N. C., 398; Jackson v. Comrs., 76 N. C., 282; Anderson v. Steamboat Co., 64 N. C., 399. In Weisenfield v. McLean, 96 N. C., 248, Davis, J., speaking for tbe Court, said: “It would be error to single out tbe testimony of one witness, when there are others testifying to tbe same matters, and charge tbe jury tbat if tbey believed tbat- witness, tbey must find in accordance witb bis testimony.” And tbis for tbe very good reason, among others, tbat though tbe witness may speak truthfully, yet bis evidence is given in tbe light of other testimony which may tend to modify and explain it, and it would be improper to take it from its own setting. Willey v. Gatling, 70 N. C., 410. There are other exceptions appearing on tbe record worthy of consideration, but we apprehend tbey will not arise on another bearing. For tbe error, as indicated, tbe cause must be tried again, and it is so ordered. New trial.