Wooten v. Cagle, 201
Decision Date | 02 November 1966 |
Docket Number | No. 201,201 |
Court | North Carolina Supreme Court |
Parties | Millard F. WOOTEN, Administrator of the Estate of Millard James Wooten, Deceased, Plaintiff, v. Larry Gene CAGLE, Defendant. |
Joseph B. Roberts, III, Gastonia, for plaintiff appellant.
Frank P. Cooke, Gastonia, for defendant appellee.
The record shows twenty assignments of error based on fifty exceptions. Discussion will be limited to those constituting the basis for principal contentions set forth in plaintiff's brief.
Plaintiff assigns as error, based on exceptions duly noted, the admission or exclusion, over plaintiff's objections, of evidence relating to the speed of defendant's car as it approached the scene of collision. This evidence was pertinent to the first (negligence) issue. Since this issue was answered in favor of plaintiff, error, if any, in the rulings challenged by these assignments is harmless. Queen City Coach Co. v. Fultz, 246 N.C. 523, 526, 98 S.E.2d 860, 863; Hodgin v. Guilford Tractor & Implement Co., 247 N.C. 578, 101 S.E.2d 323; 1 Strong, N.C. Index, Appeal and Error § 20.
The remaining assignments of error brought forward and discussed in plaintiff's brief are based on exceptions to the charge.
Assignments directed to asserted errors in the instructions relating to burden of proof are without merit. When the charge is considered contextually, it appears clearly the court properly instructed the jury that the burden of proof was on plaintiff on the first (negligence) issue and on defendant on the second (contributory negligence) issue.
Plaintiff stresses her assignment relating to the portion of the charge quoted in the following paragraph.
The court charged the jury: Plaintiff excepted to and assigns as error the portions of the quoted excerpt between (C) and (D) and between (E) and (F).
Plaintiff contends the references to reconciling seeming conflicts in the evidence, if possible, tended to confuse the jury in respect of its duty to resolve contradictions and discrepancies in the evidence.
Although no decision of this Court bearing directly thereon has come to our attention, there is authority in other jurisdictions for the quoted instructions. In 53 Am.Jur., Trial § 817, it is stated: 'If there is a conflict in the evidence, a court may properly instruct the jury that it is their duty to reconcile, if possible, all of the evidence, without arbitrarily imputing perjury to any of the witnesses, or that it is their duty to reconcile conflicts, or seeming conflicts, in the evidence, if possible.' Accord: 88 C.J.S. Trial § 359; 127 A.L.R. 1406.
Although instructions relating to reconciling conflicting evidence are neither required nor encouraged, we perceive no prejudicial error in the quoted instructions. The judge emphasized that the jurors were the sole judges of the credibility of the witnesses and of the weight, if any, to be given the testimony of the witnesses. Obviously, the instructions with reference to reconciling conflicting testimony referred only to the reconciliation of apparently conflicting testimony accepted by the jury as credible.
Plaintiff assigns as error, based on exceptions duly noted, numerous excerpts from the portion of the charge relating to the contributory negligence issue. Her brief does not single out for discussion any particular one or more of these excerpts. Her general attack is expressed as follows:
Apparently, plaintiff contends it was incumbent upon defendant to establish two separate and distinct propositions, viz.: First, to establish by degree of proof not heretofore determined that James was Capable of contributory negligence; and second to establish by the greater weight of the evidence that James was in fact contributorily negligent. We find no support in our decisions for this contention.
Applicable legal principles are well summarized in Weeks v. Barnard, 265 N.C. 339, 143 S.E.2d 809, as follows: ...
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