Westbrook ex rel. Westbrook v. Robinson

VAUGHN, Judge. All of appellant’s assignments of error are directed to the charge of the court. We are inclined to agree that the charge was not free of error. In our deliberations as to the proper disposition of this appeal, however, we have considered the following principles set out in Freeman v. Preddy, 237 N.C. 734, 76 S.E. 2d 159, a case in which the Supreme Court agreed with the appellant that there was error in the charge. “But this we need not now decide for technical error alone is not sufficient. New trials are not granted for error and no more. The burden is on the appellant not only to show error but also to show that he was prejudiced to the extent that the verdict of the jury was thereby probably influenced against him. [Citations omitted.] “The error must be ‘material and prejudicial, amounting to a denial of some substantial right,’ Wilson v. Lumber Co., 186 N.C. 56, 118 S.E. 797, and an error cannot be regarded as prejudicial to a substantial right of a litigant [319] unless there is a reasonable probability that the result of the trial might have been materially more favorable to him if the error had not occurred. Call v. Stroud, 232 N.C. 478, 61 S.E. 2d 342; Garland v. Penegar, 235 N.C. 517, 70 S.E. 2d 486. “In applying this rule, we have consistently held that when, upon a consideration of the whole record, it clearly appears that the appellant, under no aspect of the testimony, is entitled to recover and that the evidence considered in the light most favorable to him is such that the trial judge would have been fully justified in giving a peremptory instruction, or directing a verdict against him on the determinative issue or issues, any error committed during the trial will be deemed harmless. Gray v. Power Co., 231 N.C. 423, 57 S.E. 2d 316; McArthur v. Byrd, 213 N.C. 321, 195 S.E. 777; Foxman v. Hanes, 218 N.C. 722, 12 S.E. 2d 258; Clark v. Henrietta Mills, 219 N.C. 1, 12 S.E. 2d 682; Ramsey v. Ramsey, 229 N.C. 270, 49 S.E. 2d 476.” The evidence in the present case, when considered in the light most favorable to the plaintiff, was such that the trial judge should have granted defendant’s motion for a directed verdict. The rule applicable to the situation at hand is found in Dixon v. Lilly, 257 N.C. 228, 125 S.E. 2d 426: “ ‘Thus, when a motor vehicle is proceeding upon a street at a lawful speed, and is1 obeying all the requirements of the law of the road and all the regulations for the operation of such machine, the driver is not generally liable for injuries received by a child who darts in front of the machine so suddenly that its driver cannot stop or otherwise avoid injuring him.’ ” See also Johns v. Day, 257 N.C. 751, 127 S.E. 2d 543; Brewer v. Green, 254 N.C. 615, 119 S.E. 2d 610; Brinson v. Mabry, 251 N.C. 435, 111 S.E. 2d 540. No error. Chief Judge Mallard and Judge Parker concur.