Anderson v. Talman Office Supplies

Annotate this Case

73 S.E.2d 141 (1952)

236 N.C. 519


No. 91.

Supreme Court of North Carolina.

November 19, 1952.

*142 James S. Howell, Oscar Stanton and Don C. Young, Asheville, for plaintiff appellant.

Smathers & Meekins, and J. Y. Jordan, Jr., Asheville, for defendants appellees.


All of appellant's exceptive assignments of error are directed toward the charge of the court. Upon a careful examination of each of these exceptions, we find in them no substantial merit.

For example, appellant's first exception challenges the court's instruction with respect to the weight the jury should give to the testimony of interested witnesses. The appellant contends that the court in this respect set an incorrect standard. The language complained of is as follows: "Now, Gay Anderson, the plaintiff, has testified as a witness in this case. Roy S. Dockery, one of the defendants, has testified as a witness in this case. Each of these two witnesses is what we call an interested witness, that is, interested in your verdict. The court instructs you with reference to each such interested witness that you should scan and scrutinize his testimony carefully in the light of his interest in your verdict, but the law says further that after you have so scanned and scrutinized his testimony closely you come to the conclusion that he is telling the truth, then you will give to the testimony of an interested witness the same weight that you would give to the testimony of a disinterested, credible witness." This portion of the charge conforms to the applicable rule. McClamroch v. Colonial Ice Co., 217 N.C. 106, 6 S.E.2d 850.

Again, appellant directs six other exceptions to portions of the charge which relate to the first issue. Plaintiff is in no position to complain of error, if any there was, in the charge on the first issue, since that issue was answered in his favor. Carolina Scenic Stages v. Lowther, 233 N.C. 555, 64 S.E.2d 846, and cases there cited; Williams v. Raines, 234 N.C. 452, 67 S.E.2d 343.

Plaintiff also contends that the trial court erred in its instructions with respect to negligence and contributory negligence. Upon these questions the charge was full and complete. The court correctly defined negligence and contributory negligence and repeatedly told the jury that the burden of proving contributory negligence rested upon the defendant and that this burden not only included the duty of establishing by the greater weight of the evidence the contributory negligence of the plaintiff, but also included the duty of proving that such contributory negligence was one of the proximate causes of the injury sustained.

The statutes applicable to the facts here presented were fully discussed in the opinion of Barnhill, J., when this case was here on a former appeal. Anderson v. Talman Office Supplies, 234 N.C. 142, 66 S.E.2d 677. The trial court appears to have accepted and followed that opinion as the chart and compass for the second trial.

*143 Upon a careful examination of the entire charge, considered contextually and compositely, we find no error warranting a new trial.

No error.