Sizemore v. Raxter

293 S.E.2d 294 (1982)

Homer Jefferson SIZEMORE v. Jeffrey Eugene RAXTER and Dillard Eugene Raxter.

No. 8127SC1170.

Court of Appeals of North Carolina.

July 6, 1982.

Roberts & Planer, P. A. by Joseph B. Roberts, III, Gastonia, for plaintiff-appellee.

John B. Whitley, Charlotte, for defendants-appellants.

WHICHARD, Judge.

Plaintiff sought damages for injuries he sustained when struck by an automobile owned by defendant Dillard Raxter and operated by defendant Jeffrey Raxter. The jury answered the negligence issue in plaintiff's favor, but answered the contributory negligence issue against him.

The trial court granted plaintiff's G.S. 1A-1, Rule 59 motion for a new trial. Defendants appeal, contending (1) their motion for a directed verdict on the ground of contributory negligence as a matter of law should have been granted, and (2) the court erred in granting plaintiff's motion for a new trial.

One of the grounds on which the court granted plaintiff's motion was that "the ends of justice will be met" thereby. G.S. 1A-1, Rule 59(a)(9), permits the granting of a new trial for "[a]ny ... reason heretofore recognized as grounds for new trial." That justice would be served thereby was, when Rule 59 was adopted, a recognized ground for granting a new trial. See Walston v. Greene, 246 N.C. 617, 99 S.E.2d 805 (1957). The decision "rests in the sound discretion of the trial judge." Id. at 617, 99 S.E.2d at 806. Absent record disclosure of abuse of discretion, "the order is not subject to review on appeal." Id. See also Britt v. Allen, 291 N.C. 630, 634-35, 231 S.E.2d 607, 611 (1977); Atkins v. Doub, 260 N.C. 678, 133 S.E.2d 456 (1963); Byrd v. Hampton, *295 243 N.C. 627, 91 S.E.2d 671 (1956); White v. Keller, 242 N.C. 97, 99, 86 S.E.2d 795, 796-97 (1955); Strayhorn v. Bank, 203 N.C. 383, 166 S.E. 312 (1932). No abuse of discretion appears.

Interlocutory rulings in the course of trial, such as the denial of defendants' motion for directed verdict, are not immediately appealable. Defendants' assignment of error to the denial of their motion for directed verdict thus is not reviewable at this time. Atkins, supra; Byrd, supra; White, supra; Strayhorn, supra.

Appeal dismissed.

CLARK and WEBB, JJ., concur.