Montgomery v. Wrenn

ARNOLD, Judge. Plaintiff contends that the trial court committed prejudicial error in excluding competent evidence relating to the extent of plaintiff’s injuries. Plaintiff’s contention is based on exclusions in her testimony and the testimony of Dr. Bittinger. Defendant argues that the exclusions were proper because the answers were not responsive. . Plaintiff contends error but does not make an attempt to show prejudice or harm. The exclusion of testimony is not prej [34] udicial when it appears that the testimony could have no material bearing on the issue or could not alter the rights of the parties or affect the outcome of the case. Both Dr. Bittinger and the plaintiff were permitted to testify as to matters of the same import in their subsequent testimony. Plaintiff did not satisfy the burden of showing prejudicial harm. Plaintiff next contends that the trial court committed prejudicial and reversible error by denying plaintiff’s motion to set aside the verdict and grant a new trial. A motion to set aside the verdict is addressed to the sound discretion of the trial court and denial of the motion is not reviewable in the absence of manifest abuse of discretion. Martin v. Underhill, 265 N.C. 669, 144 S.E. 2d 872 (1965) ; Wilson v. Young, 14 N.C. App. 631, 188 S.E. 2d 671 (1972). As in Johnson v. Johnson, 23 N.C. App. 449, 209 S.E. 2d 420, cert. denied 286 N.C. 335, 211 S.E. 2d 212 (1974), plaintiff’s contentions were submitted to the jury on stipulated issues. The jury could have found that the defendant was not negligent or that the plaintiff was not injured by the defendant’s negligence. There was evidence present which could have led the jury to disbelieve the plaintiff’s primary proponent, Dr. Bittinger. It is well within the province of the jury to so conclude. The trial judge did not abuse his dicretion in denying plaintiff’s motion to set aside the verdict and grant a new trial. No error. Chief Judge Brock and Judge Parker concur.