Rayfield v. Clark

196 S.E.2d 197 (1973)

283 N.C. 362

Arthur Buster RAYFIELD, Administrator of the Estate of Mack L. Rayfield, Deceased v. Laura Edna CLARK and Mrs. Annie Ethel Clark.

No. 82.

Supreme Court of North Carolina.

May 9, 1973.

*199 Byrd, Byrd, Ervin & Blanton, Morganton, for plaintiff appellee.

Clarence N. Gilbert, Asheville, for defendant appellants.

SHARP, Justice:

Defendants assign as error the court's refusal (1) to grant their motion for a directed verdict at the close of all the evidence and (2) to set aside the jury's verdict and enter judgment in accordance with their motion for a directed verdict. G.S. § 1A-1, Rule 50(a), (b)(1), (1969). These motions raise the question whether the evidence, considered in the light most favorable to the plaintiff, will justify a verdict in his favor. Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971).

Thus viewed, the jury could have found from the evidence that Miss Clark, without keeping a proper lookout, and traveling at a greater speed than was reasonable and prudent after she had seen on the east shoulder a group of pedestrians who appeared to her to be about to cross the highway, drove off the pavement and collided with Rayfield on the west shoulder. From the evidence the jury could also have found that Miss Clark, driving at a reasonable rate of speed entirely in the lane for southbound traffic, collided with Rayfield when he suddenly stepped from the west shoulder onto the pavement and directly into the path of her oncoming car, which he should have seen approaching had he exercised proper care for his own safety.

The jury accepted Franklin's version of events and found for plaintiff. Defendants contend, however, that Franklin's testimony is inherently incredible and disproved by the physical evidence at the scene. Concededly, the absence of any testimony from the other three persons who were on the highway with Franklin at the time of the accident raises unanswered questions. In addition the evidence of Franklin's intoxication, plus the extraordinary acuteness and range of vision which would have been required to see what he said he saw, cast some doubt on the accuracy of his observations. Yet the jurors *200 are the sole judges of the credibility of a witness, and the weight to be given Franklin's testimony was a matter for them. The jury may believe all of the testimony of a witness, or part of it, or none of it. Brown v. Brown, 264 N.C. 485, 488, 141 S.E.2d 875, 877 (1965). In passing upon a motion for a directed verdict and the subsequent motion for a judgment notwithstanding the verdict based upon it, we must accept the testimony of plaintiff's witnesses at face value. Cockman v. Powers, 248 N.C. 403, 407, 103 S.E.2d 710, 713 (1958). We hold therefore that plaintiff's evidence was sufficient to survive the motion for a directed verdict.

Defendants' next assignment is that the court erred in not allowing their motion to set aside the verdict as being against the greater weight of the evidence. This motion, of course, was addressed to the sound, judicial discretion of the trial judge, and his refusal to grant the motion is not appealable in the absence of manifest abuse of discretion. Williams v. Boulerice, 269 N.C. 499, 153 S.E.2d 95 (1967). The reason for this rule is that the trial judge sees the witness and hears his testimony; the appellate court merely reads it. In passing upon a motion to set aside a verdict as being against the greater weight of the evidence, the trial judge is not required to take the testimony of any witness at face value. At any time he is convinced that the jury has been misled by unreliable testimony into returning an erroneous verdict his is the responsibility for awarding a new trial for that reason. Judge Anglin denied the motion to set aside the verdict and abuse of discretion has not been shown. This assignment of error is overruled.

Defendants' final contention is that the court erred in failing to declare a mistrial when, while deliberating upon its verdict, the jury returned into the court and handed the following written question to the judge: "We, the jury, would like to know if the car was insured, and if there has been any money paid on said expenses incurred by the deceased by any insurance company?"

After instructing the jury that the matters involved in their question were of no concern whatever to them and that they would not consider those matters in any respect in arriving at their verdict, the judge directed them to retire and resume their deliberations. Neither at that time, nor at any other, did defendants move for a mistrial, and this contention was first made on appeal. An assignment of error must be based on an exception timely noted, and exceptions which appear nowhere in the record except under the purported assignment of error will not be considered. Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223 (1955); Strong, 1 N.C. Index 2d Appeal and Error § 24 (1967).

In the trial below we find no reversible error.

No error.