Beaver v. Teal , 260 N.C. 543 ( 1963 )

Pee Curiam.

Plaintiff contends the court should have nonsuited defendant's counterclaim -and that she should be awarded a new trial (as to her action) on account of errors in rulings on evidence and in the charge. Defendant contends the court should have nonsuited plaintiff’s action and that he should be 'awarded a new trial (as to' hie counterclaim) on account of errors in rulings on evidence and in the charge.

There 'its much force in defendant’s contention that the evidence, when considered in the light most favorable to plaintiff, discloses that plaintiff’s (contributory) negligence was a proximate cause of the collision. Too-, there is much force in plaintiff’s contention, that -the evidence, when considered in the light most favorable to defendant, discloses that defendant’s (contributory) negligence was a proximate cause of the collision. There was plenary evidence to support the jury’s findings that the negligence of both plaintiff and defendant proximately caused the collision.

Each assignment of error 'brought forward by plaintiff and by defendant has been carefully considered. The challenged rulings and instructions are not free from error. However, consideration of the evidence in its entirety and of the charge contextually leaves the impression that neither party was prejudiced by such error (is). Indeed, it appears well-nigh inescapable that each driver*, notwithstanding by the ■exercise of due care he (she) could ^and should 'have done so, failed to observe the approach of the other and the imminent danger of collision until too late to avoid .the collision. Under these 'circumstances, the verdict of the jury will not be disturbed.

In view of our decision, it Is unnecessary to pass upon plaintiff’s motion to dismiss defendant’s appeal for failure to file (separate) brief in connection- .therewith within the time prescribed by -the Rules of this Court.

It is ordered that each party shall pay one-half of all casts incident to both appeals.

On plaintiff’s appeal: No- error.

On defendant’s appeal: No error.