Benbow v. Western Union Telegraph Company

134 S.E.2d 652 (1964)

261 N.C. 404

Charlie BENBOW v. WESTERN UNION TELEGRAPH COMPANY, Inc., and Edward E. Jackson, Original Defendants, and Cecil C. Brown, Additional Defendant.

No. 173.

Supreme Court of North Carolina.

March 4, 1964.

*654 Addison Hewlett, Jr., and Elbert A. Brown, Wilmington, for plaintiff appellant.

Poisson, Marshall, Barnhill & Williams, Wilmington, for defendants Western Union and Edward E. Jackson.

Royce S. McClelland and W. Allen Cobb, Wilmington, for additional defendant Cecil C. Brown.

PER CURIAM.

The conclusion is inescapable that the two defendants approached the intersection at approximately the same time. Jackson, being on Brown's right, had the right of way notwithstanding Brown may have entered the intersection a hairsbreadth before him. G.S. 20-155(a); Yost v. Hall, 233 N.C. 463, 64 S.E.2d 554. Hence, the jury's verdict exonerating Jackson was clearly correct. Indeed, defendants Jackson and Western Union were entitled to their motion of nonsuit. Carr v. Lee, 249 N.C. 712, 107 S.E.2d 544.

Plaintiff contends, however, that one of the defendants was necessarily negligent and that the verdict exculpating both was manifestly so inconsistent that the judge committed error when he declined to set it aside. Conceding Brown's negligence, in order to recover against him, plaintiff was required to satisfy the jury by the greater weight of the evidence that his negligence proximately caused the back injury of which he complained. The judge instructed the jury as to Brown's duty to yield the right of way to Jackson. The weight and credibility of plaintiff's testimony, as well as the question of proximate cause, was for the twelve. The evidence in this case was not complicated. It simply failed to convince the jury that plaintiff was injured as he alleged.

We have examined all the assignments of error and prejudice justifying a new trial does not appear.

No error.