Lark v. McManus, 11 N.C. App. 211 (1971)

April 28, 1971 · North Carolina Court of Appeals · No. 7126SC24

11 N.C. App. 211

JOHN HENRY LARK v. LEROY McMANUS, JR.

No. 7126SC24

(Filed 28 April 1971)

Appeal by plaintiff from Hasty, Superior Court Judge, 22 June 1970 Special Mixed Session of Superior Court held in Mecklenburg County.

In his complaint plaintiff sought to recover damages for personal injuries alleged to have been sustained as a result of the actionable negligence of the defendant when an automobile operated by the plaintiff and one operated by the defendant collided at an intersection in Charlotte. Defendant answered and denied that he was negligent, pleaded contributory negligence of the plaintiff, and filed a counterclaim in which it was alleged that defendant’s automobile was damaged by the actionable negligence of the plaintiff.

From an adverse judgment, the plaintiff appealed.

Marvin Lee Ritch for plaintiff appellant.

Carpenter, Golding, Crews & Meekins for defendant ap-pellee.

MALLARD, Chief Judge.

Plaintiff’s appeal was not docketed within the time permitted by the rules of this court, and no extension of time was granted. However, we deny defendant’s motion to dismiss, treat the appeal as a petition for a writ of certiorari, allow it, and consider the case on its merits.

The evidence was conflicting. Plaintiff’s evidence tended to show that he was injured by the actionable negligence of the defendant, and defendant’s evidence tended to show that his property was damaged by the actionable negligence of the plaintiff.

The jury, by the verdict, held that the plaintiff was not injured by the actionable negligence of the defendant and that the defendant’s automobile was damaged in the amount of $600 by the actionable negligence of the plaintiff.

We have carefully considered plaintiff’s assignments of error and find no prejudicial error in the trial.

No error.

Judges Parker and Vaughn concur.