Brittain v. Atlantic & Yadkin Railway Co.

Seawell, J. ¥e see no evidence in the record under which the defendant Western Union Telegraph Company, Inc., might be held for negligence, and the motion of this defendant for judgment as of nonsuit should have been allowed. ' The defendant Atlantic & Yadkin Railway Company offered certain documents appearing to have been releases previously signed by plaintiff for other injuries, explaining that in offering them- it was to show that the “plaintiff had had such papers 'as this before,” which defendant claimed might have a bearing on the fact of his knowledge of what the papers or releases in controversy were. This evidence was excluded by the court as irrelevant, and in this we find no error. As to this defendant, the evidence was sufficient to go to the jury in support of the contentions of the plaintiff, and its motion for judgment as of nonsuit was properly overruled. The other exceptions relate to instructions to the jury. Most of them appear to have been taken on the principle that defendant was prejudiced by the extent to which the court dwelt upon the contentions of the plaintiff. An examination of the entire charge leaves us with the impression that the defendant was not discriminated against in such a manner as to create prejudice in the minds of the jury upon the pertinent issues. There was certainly not a sufficient discrimination as to relieve the defendant from the duty of calling to the court’s attention such contentions as may have been inadvertently omitted. Sorrells v. [743] Decker, 212 N. C., 251, 193 S. E., 14; S. v. Sinodis, 189 N. C., 565, 127 S. E., 601. Tbe defendant Atlantic & Yadkin Railway Company did call to tbe attention of tbe court its contentions as to tbe first release, wbicb bad been taken out of tbe office, and tbe court, thereupon, called tbe jury’s attention to that. Tbe objection bere is that tbe court did not state to tbe jury tbe contention of tbe defendant as to tbe effect this might have on tbe charge of deception and fraud. But we see no reversible error in tbe manner in wbicb it was presented to tbe jury. It is not our function, and certainly not that of tbe trial judge, to pass upon tbe weight of tbe evidence. When there is any evidence to support plaintiff’s ease, it must be submitted to tbe jury. Lumber Co. v. Power Co., 206 N. C., 515, 174 S. E., 427; Newbern v. Leary, 215 N. C., 134; Fox v. Army Stores, 215 N. C., 187. Try as be may, tbe trial judge in bis instructions to tbe jury may not always be so fortunate as to maintain a strictly even balance in the statement of tbe contentions. In that respect, however, we find no substantial and reversible error in tbe present case. On tbe appeal of the defendant Western Union Telegraph Company, Inc., tbe judgment below denying tbe motion for judgment as of non-suit is Reversed. On tbe appeal of tbe defendant Atlantic & Yadkin Railway Company, we find No error.