McKeller v. Martin, 210 N.C. 830 (1936)

Sept. 23, 1936 · Supreme Court of North Carolina

210 N.C. 830

MRS. O. G. McKELLER v. FLOYD MARTIN and BLUE BIRD TAXIS, INC.

(Filed 23 September, 1936.)

Appeal by the defendants from McElroy, J., at April Term, 1936, of Buncombe.

Error.

This was an action to recover damages for personal injuries alleged to have been inflicted by the negligent operation of an automobile, and was tried upon the following issues:

“1. Was the plaintiff injured by the negligence of the defendants, as alleged in the complaint?

“2. What amount of damages, if any, is plaintiff entitled to recover of defendants?”

The first issue was answered “Yes” and the second “$500.00,” and from judgment based on the verdict the defendants appealed, assigning errors.

Lee & Lee for plaintiff, appellee.

John C. Cheesborough for defendants, appellants.

Per Curiam.

The appellant assigns as error the following excerpt from his Honor’s charge: “If you answer the (first) issue ‘Yes,’ you will proceed to the consideration of the second issue as to the damages sustained, if any, but if you fail to find by the greater weight of the evidence that the defendant was guilty of negligence, and that such negligence was the proximate cause of the plaintiff’s injury, then you will answer the first issue ‘Yes’; otherwise, you will answer it ‘No.’” The error is obvious. His Honor used the word “Yes” where he should have used tbe word “No,” and “No” where be should have used “Yes.” This error, evidently due to inadvertence, was one of the unavoidable casualties of the circuit, but, being material, it entitles the defendants to a new trial.

Error.