Call v. Stroud, 240
| Decision Date | 11 October 1950 |
| Docket Number | No. 240,240 |
| Citation | 232 N.C. 478,61 S.E.2d 342 |
| Parties | CALL, v. STROUD et ux. |
| Court | North Carolina Supreme Court |
Hayes & Hayes and Larry S. Moore, North Wilkesboro, for plaintiff, appellant.
Trivette, Holshouser & Mitchell, North Wilkesboro, for defendant, Phillip S. Stroud, appellee.
A party who comes into the Supreme Court seeking relief from a judgment of the Superior Court must allege and show these two things: (1) That the judge of the Superior Court committed an error in a matter of law or legal inference; and (2) that such error affected prejudicially a substantial right belonging to him. An error cannot be regarded as prejudicial to a substantial right of a litigant 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. Stewart v. Dixon, 229 N.C. 737, 51 S.E.2d 182; Shelly v. Grainger, 204 N.C. 488, 168 S.E. 736; Thigpen v. Farmers Banking & Trust Co., 203 N.C. 291, 165 S.E. 720; Rudd v. American Fidelity & Casualty Co., 202 N.C. 779, 164 S.E. 345; Butner v. Whitlow, 201 N.C. 749, 161 S.E. 389; Carstarphen v. Carstarphen, 193 N.C. 541, 137 S.E. 658; Perry v. Southern Surety Co., 190 N.C. 284, 129 S.E. 721; McNinch v. American Trust Co., 183 N.C. 33, 110 S.E. 663; In re Edens' Will, 182 N.C. 398, 109 S.E. 269; Quelch v. Futch, 175 N.C. 694, 94 S.E. 713; Bailey v. Justice, 174 N.C. 753, 94 S.E. 518.
When the exceptions reserved by the plaintiff are laid alongside this practical and sensible rule of appellate procedure, it becomes clear that the judgment of the trial court cannot be disturbed.
The exceptions to portions of the charge on the first issue are untenable; for it does not appear that the judge erred in them. The instructions on this feature of the case do not merit the criticism voiced by plaintiff that the court failed to charge the jury in respect to the duty of a motorist to exercise due care to avoid injuring children whom he sees, or by the exertion of reasonable care could see, on or near the highway. Hughes v. Thayer, 229 N.C. 773, 51 S.E.2d 488.
We will consider together the exception to the submission of the second issue, and the exceptions to the portions of the charge thereon. It is an undoubted rule of appellate practice in this jurisdiction that the submission to the jury of an issue of fact not warranted by both the pleadings and the testimony constitutes reversible error if prejudice results to the objecting party. Fortescue v. Crawford, 105 N.C. 29, 10 S.E. 910. For the purpose of this particular appeal, we assume, witout so deciding, that there was no evidence at the trial justifying the submission of the second issue, and that the instructions of the court to the jury on that issue were erroneous. Nevertheless, the present record compels the conclusion that the errors of the court in submitting the second issue and in giving the jury incorrect instructions thereon did not affect prejudicially any substantial right of the plaintiff. The jury did not consider the issue improperly submitted, or make any finding thereon. The verdict on the first issue, i. e., that the male defendant was not guilty of any actionable negligence, necessarily required that judgment be entered against the plaintiff, and rendered the issue of contributory negligence and the instructions thereon immaterial. Wyatt v City of Raleigh, 172 N.C. 847, 90 S.E. 213; Fourth Nat. Bank of Fayetteville v. Wilson, 168 N.C. 557, 84 S.E. 866; Cannady v. Durham, 137 N.C. 72, 49 S.E. 50.
The trial judge made dim memorandums in pencil on the paper containing the issues to facilitate the delivery of his charge to the jury. He noted the words 'burden', 'negligence', and 'proximate cause' on the margin beside the first issue; the words 'burden', 'contributory negligence ', and 'opinion' on the margin beside the second issue; and the words 'burden' and 'measure...
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Perkins v. Langdon
...would have ensued, with the burden being on the appellant to show this. State v. Rainey, 236 N.C. 738, 74 S.E.2d 39; Call v. Stroud, 232 N.C. 478, 61 S.E. 2d 342; Wilson v. Suncrest Lumber Co., 186 N.C. 56, 118 S.E. Also, our examination of the exceptions relating to the charge disclose no ......
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State ex rel. Freeman v. Ponder, 105
...of the jury in any degree had it been admitted in evidence on the protracted trial of the action in the superior court. Call v. Stroud, 232 N.C. 478, 61 S.E.2d 342; State v. Mundy, 182 N.C. 907, 110 S.E. 93. For this reason, we are unwilling to hold that the exclusion of this small piece of......
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Moore v. Deal
...had not occurred. Goode v. Barton, 238 N.C. 492, 78 S.E.2d 398; Beaman v. Southern R. Co., 238 N.C. 418, 78 S.E.2d 182; Call v. Stroud, 232 N.C. 478, 61 S.E.2d 342. However, the failure to find such facts is not The appellant contends in his brief that the court committed error in holding t......
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State v. Bovender
...cannot be regarded as prejudicial unless there is a reasonable probability that the result would have been different. Call v. Stroud, 232 N.C. 478, 61 S.E.2d 342. 'Verdicts and judgments are not to be set aside for harmless error, or for mere error and no more To accomplish this result, it ......