Fountain v. City of Rocky Mount, 190 N.C. 851 (1925)

Sept. 16, 1925 · Supreme Court of North Carolina

190 N.C. 851

W. R. FOUNTAIN and Wife v. THE CITY OF ROCKY MOUNT.

(Filed 16 September, 1925.)

Appeal by plaintiffs from Sinclair, J., at June Term, 1925, of Edgecombe.

Civil action to recover damages for an alleged negligent injury to feme plaintiff, caused by the escaping of carbon monoxide from a kitchen range, water heater and tank, installed by agents of the defendant in plaintiffs’ home and heated by gas purchased from the municipality owned and operated Rocky Mount Gas Works.

From a verdict and judgment in favor of defendant, the plaintiffs appeal, assigning errors.

F. S. Spruill and George M. Fountain for plaintiffs.

L. V. Bassett, B. H. Thomas, T. T. Thorne and W. 0. Howard for defendant.

Peb Cueiam.

Plaintiffs have abandoned all their exceptions and assignments of error appearing on the record and rely entirely upon their motion for a new trial on the ground of newly discovered evidence. It is alleged in the motion, seasonably lodged for the purpose, that the information which the plaintiffs consider material and vitally important, came to their knowledge and attention after the term of court at which the case was tried had adjourned, and after the appeal had been docketed here. Allen v. Gooding, 174 N. C., 271. The motion is supported by affidavit, and the defendant has filed quite a number in reply. From a careful scrutiny and examination of the pertinent affidavits, filed by both sides, we are of opinion that the motion must be overruled. The showing made by plaintiffs falls short of the requirements laid down in Johnson v. R. R., 163 N. C., p. 453. The motion, therefore, for a new trial, upon the ground stated, is denied.

No error.