Gibson v. Montford

Britt, J. Plaintiff assigns as error the granting of defendant Aman’s motion for nonsuit at the close of plaintiff’s evidence. Suffice to say, we have carefully reviewed the evidence in) the light most favorable to plaintiff but find that it fails to disclose any act or omission by defendant Aman which constituted actionable negligence and was a proximate cause of plaintiff’s injury and damage. For that reason we hold that the trial court did not err in granting defendant Aman’s motion for nonsuit. The assignment of error is overruled. Plaintiff assigns as error the failure of the court to admit in evidence, over defendant Montford’s objection, a record from the Carteret General Hospital indicating that an examination of Montford’s blood a short while after the collision disclosed the presence of a substantial quantity of ethyl alcohol in his blood. Plaintiff’s able counsel concedes that by reason of the decision in Sims v. Insurance Co., 257 N.C. 32, 125 S.E. 2d 326, and G.S. 8-53 this evidence was not admissible over defendant Montford’s objection unless the trial judge should rule that in his opinion the evidence was necessary to a proper administration of justice; but, plaintiff contends that the trial judge abused his discretion in' not ordering the admission of the evidence. [253] We disagree with this contention and do not think any abuse of discretion is shown. The assignment of error is overruled. Plaintiff assigns as error the testimony of Highway Patrolman Jones with respect to tire marks, position of cars, etc., at the time the patrolman arrived at the scene. We have scrutinized the patrolman’s testimony in light of the other testimony introduced and perceive no prejudicial error in any part of it. The assignment of error is overruled. Finally, plaintiff assigns as error the failure of the trial judge in his charge to the jury to “declare and explain the law arising on the evidence” as required by applicable statutes and decisions. We note that plaintiff’s assignment of error No. 13 based upon exception No. 13 to a specific portion of the charge is not brought forward and argued in his brief, therefore, it is deemed to be abandoned. Rule 28, Rules of Practice in the Court of Appeals of North Carolina. Considering the charge contextually, as a whole, we think the court sufficiently declared and explained the law arising on the evidence as to all the substantial features of the case. The assignment of error is overruled. No error. Campbell and Vaughn, JJ., concur.