Frazier v. Suburban Rulane Gas Co.

Per Curiam. The defendant appellant’s brief in the original hearing contained the following: “No evidence was offered by the defendant . . . and the defendant appealed, seeking a reversal of the court below in submitting the case to the jury. . . . The appellant only appeals on the correctness of the court’s ruling in submission of this case to the jury and is not seeking a new trial.” The plaintiff’s evidence elicited by hypothetical question and answer was fully discussed in the original opinion. If the defendant’s exception to the question and answer were valid they would entitle it not to a reversal, but to a new trial which its attorney of record says it does not want. This Court has said many times over that on motion for nonsuit all the evidence in the case, both competent and incompetent, must be considered and given weight for reasons stated in Early v. Eley, 243 N.C. 695, 91 S.E. 2d 919, and the many cases there cited. After due consideration, no reason appears why the former decision should be disturbed. The defendant will pay the costs. Petition Dismissed.