Nichols v. McFarland

105 S.E.2d 294 (1958)

249 N.C. 125

Ted R. NICHOLS v. Isaac McFARLAND.

No. 386.

Supreme Court of North Carolina.

October 29, 1958.

*295 Hayes & Hayes, by Kyle Hayes, North Wilkesboro, for defendant-appellant.

Ralph Davis, North Wilkesboro, for plaintiff-appellee.

HIGGINS, Justice.

The appellant asks for a reversal of the judgment or a new trial on the basis of 12 assignments of error. We quote assignment No. 1: "The court erred in permitting the plaintiff to testify as shown by Exceptions Nos. 1 (R. p. 11), 2 (R. p. 12) and 3 (R. p. 12)." Assignments Nos. 2, 3, 4, 6, 7, and 9 are in similar form.

Rule 19(3), Rules of Practice in the Supreme Court, 221 N.C. 554, 555, as interpreted in the decisions of this Court, require: "Always the very error relied upon should be definitely and clearly presented, and the court not compelled to go beyond the assignment itself to learn what the question is." State v. Mills, 244 N.C. 487, 94 S.E.2d 324; Allen v. Allen, 244 N.C. 446, 94 S.E.2d 325; Parsons v. Benfield, 228 N.C. 651, 46 S.E.2d 829; Porter v. American Cigar Box Lumber Co., 164 N.C. 396, 80 S.E. 443; Thompson v. Seaboard Air Line R. Co., 147 N.C. 412, 61 S.E. 286. The objectionable assignments in their present form would require the Court to undertake a voyage of discovery through the record to ascertain what the assignments involve. This the Court will not do. Cecil v. Snow Lumber Co., 197 N.C. 81, 147 S.E. 735.

Assignment No. 5 relates to the refusal of the court to allow the motion for nonsuit at the close of the plaintiff's evidence. By introducing evidence after the court overruled the motion, the defendant waived his right to insist on the motion. However, the defendant renewed the motion at the close of all the evidence and thus preserved his right of appeal, but only upon the insufficiency of all the evidence to present a jury question. This right he has preserved by assignment No. 8, based on exception No. 13: "When the assignment of error is to the court's ruling on nonsuit, it is enough to refer to the motion, the ruling thereon, the number of the exception, and the page of the record where found." Allen v. Allen, supra [244 N.C. 446, 94 S.E.2d 328].

By assignment No. 10 the defendant raises the question whether the court, in the charge, gave undue emphasis to plaintiff's evidence and contentions. The objection is not valid. The court's charge appears to be full, complete, and without favor.

Evidence of defendant's actionable negligence was sufficient to go to the jury and to support the verdict. Evidence of contributory negligence on the part of the plaintiff does not appear as a matter of law. It is doubtful whether it was even sufficient to require the submission of the issue to the jury. The motion of nonsuit was properly denied.

Assignments of error Nos. 11 and 12 are to the refusal of the court to set aside the verdict and to the signing of the judgment. They do not require discussion.

Appeal from a final judgment of the superior court is a matter of right. This right is exercised with such frequency as makes mandatory adherence to the rules governing appeals.

No error.

PARKER, J., not sitting.