Malphurs v. Ellington, 208 N.C. 834 (1935)

Sept. 18, 1935 · Supreme Court of North Carolina

208 N.C. 834

MARY J. MALPHURS, Administratrix, v. T. S. ELLINGTON et al.

(Filed 18 September, 1935.)

Appeal by plaintiff from Harding, J., at January Special Term, 1935, of Mecklenburg.

Civil action to recover damages for death of plaintiff’s intestate, alleged to have been caused by tbe neglect, default, or wrongful act of tbe defendant, when tbe cart in which plaintiff’s intestate was riding was struck by an automobile owned by tbe defendant T. S. Ellington, and operated at tbe time by bis son, John Ellington.

Tbe jury returned tbe following verdict:

“1. Was tbe plaintiff’s intestate killed by tbe negligence of tbe defendant, as alleged? A. ‘Yes.’

“2. Did tbe plaintiff’s intestate, by bis own negligence, contribute to bis death, as alleged in tbe answer? A. ‘Yes.’ ”

Judgment on tbe verdict for defendants, from which plaintiff appeals, assigning errors.

J. D. McCall, G. T. Carswell, and Joe W. Ervin for plaintiff.

J. Laurence J ones and Plummer Stewart for defendants.

Pee CueiaM.

Tbe jury's answer to tbe second issue bars recovery on tbe part of tbe plaintiff. Rimmer v. R. R., ante, 198; Moore v. Iron Works, 183 N. C., 438, 111 S. E., 776. Tbe case on trial narrowed itself largely to controverted issues of fact. Botb were found to be negligent. No reversible error bas been made to appear. While some of tbe illustrations used by tbe judge in bis charge seem a little inapposite, still tbey appear to be without material significance. They could hardly have affected tbe result. S. v. Marshall, ante, 127.

In tbe absence of a clearer showing, tbe verdict and judgment must be upheld. It is so ordered.

No error.