Powers v. City of Wilmington

• Citation: 99 S.E. 102,177 N.C. 361
• Decision Date: 29 April 1919
• Docket Number: 288.
• Parties: POWERS v. CITY OF WILMINGTON et al.
• Court: United States State Supreme Court of North Carolina

99 S.E. 102

177 N.C. 361

POWERS v. CITY OF WILMINGTON et al.

No. 288.

Supreme Court of North Carolina

April 29, 1919

Appeal from Superior Court, New Hanover County; Stacy, Judge.

Action by Emma T. Powers against the City of Wilmington and others. Plaintiff's motion for judgment on the verdict denied verdict set aside, and new trial ordered, and plaintiff appeals. Affirmed.

The trial judge was within his rights in denying motion for judgment on the verdict if he had committed error prior to verdict.

This is an action against the city of Wilmington and W. H. McEachern and A. G. Warren to recover damages for personal injury caused, as the plaintiff alleges, by the negligence of the defendants.

The plaintiff was injured on the 9th of September, 1916, by slipping and falling on a sidewalk on Front street in Wilmington.

The jury returned the following verdict:

"(1) Was the plaintiff injured by the negligence of the defendant city of Wilmington, as alleged in the complaint? Yes.

"(2) Was the plaintiff injured by the negligence of the defendant A. G. Warren, as alleged in the complaint? No.

"(3) Was the plaintiff injured by the negligence of the defendant W. H. McEachern, as alleged in the complaint? No.

"(4) Did the plaintiff by her own negligence contribute to her injury, as alleged? No.

"(5) What damages, if any, is plaintiff entitled to recover? $3,800.

"(6) Was the negligence of the defendant W. H. McEachern, if negligent at all, primary and of such a nature as to entitle the city of Wilmington to indemnity and judgment over against the said W. H. McEachern, as alleged? No."

The plaintiff moved for judgment upon the verdict against the city of Wilmington, which was refused, and the plaintiff excepted.

His honor then set aside the verdict and ordered a new trial as to the city of Wilmington and the defendant A. G. Warren, "not as a matter of discretion, but for errors committed in the trial of the cause," and the plaintiff excepted and appealed.

J. Felton Head and John D. Bellamy & Son, all of Wilmington, for appellant.

Carr, Poisson & Dickson, of Wilmington, for appellee McEachern.

Robert Ruark, of Wilmington, for appellee City of Wilmington.

ALLEN J.

The record is in a very unsatisfactory condition, and it illustrates the wisdom of the note of disapproval in Shives v. Cotton Mills, 151 N.C. 294, 66 S.E. 141, of the practice of setting aside a verdict for error in law and not in the exercise of a discretion.

In such cases, the party in whose favor the verdict is returned is the appellant, and, as he is interested in showing that no error was committed on the trial in order that he may be entitled to judgment on the verdict, the difficulty of securing a correct statement of case on appeal is greatly increased.

The right of appeal has been recognized in many decisions, but the condition must be imposed of requiring the judge to state separately at the time of the trial, or in the case on appeal, the several rulings he thinks erroneous, which induced his action.

In this case the verdict was in favor of the plaintiff, but the judge refused the motion for judgment upon the verdict and set it aside "for errors committed in the trial of the cause," and the plaintiff appealed.

The judge was within his rights to deny the motion for judgment if he had committed error, and the appeal therefore presents the question whether there was error up to the rendition of the verdict, and, as the action of the judge was because he thought he had erred against the defendant the city of Wilmington, the plaintiff must show there was no error against this defendant.

"Appellant must show error; we will not presume it, but he must make it appear plainly, as the presumption is...