Poniros v. Nello L. Teer Co.

Annotate this Case

72 S.E.2d 9 (1952)

236 N.C. 144

PONIROS et al. v. NELLO L. TEER CO.

No. 750.

Supreme Court of North Carolina.

August 22, 1952.

*10 C. S. Hammond, Durham, and L. J. Phipps, Chapel Hill, for plaintiffs, appellants.

Fuller, Reade, Umstead & Fuller, and W. P. Farthing, Durham, for defendant, appellee.

JOHNSON, Justice.

The plaintiffs' first group of exceptive assignments of error relate to the refusal of the trial court to allow their motions to set aside the verdict and grant a new trial upon the ground that the verdict is contrary to the greater weight of the evidence.

These motions were directed to the sound discretion of the presiding Judge, whose rulings, in the absence of abuse of discretion, are not reviewable on appeal. No abuse of discretion is shown. G.S. § 1-207; Goodman v. Goodman, 201 N.C. 808, 161 S.E. 686; Ziglar v. Ziglar, 226 N.C. 102, 36 S.E.2d 657; Muse v. Muse, 234 N.C. 205, 66 S.E.2d 689. It follows, then, that these exceptions are without merit.

The only remaining exceptive assignment brought forward relates to the charge of the court on the issue of damages. Here it is urged by the plaintiffs that the trial court "did not give the contentions of the plaintiffs with equal dignity with those of the defendant," as required by G.S. § 1-180 as rewritten by Chapter 107, Session Laws of 1949. Since the issue of negligence was answered in favor of the defendant, the jury did not reach the issue of damages. And ordinarily the rule is that error committed in charging on an issue not reached by the jury is treated as harmless. Bruce v. O'Neal Flying Service, 234 N.C. 79, bottom page 86, 66 S.E.2d 312. Besides, the exception is in general terms and does not specify or direct the attention of the Court to any particular contention or series of contentions given or omitted by the presiding Judge as the basis of the error or errors assigned. Thus the exception is broadside. Rule 19(3), Rules of Practice in the Supreme Court, 221 N.C. page 553 et seq.; Albritton v. Albritton, 210 N.C. 111, 185 S.E. 762; Rawls v. Lupton, 193 N.C. 428, 137 S.E. 175.

Prejudicial error has not been made to appear. The verdict and judgment will be upheld.

No error.