Board of Transportation v. Harvey , 28 N.C. App. 327 ( 1976 )

MARTIN, Judge.

Defendants contend that the court erred in failing to declare and explain the law arising on the evidence in this case as required by G.S. 1-180.

“The chief purpose of a charge is to aid the jury to understand clearly the case, and to arrive at a correct verdict. For this reason, this Court has consistently ruled that G.S. 1-180 imposes upon the Trial Judge the positive duty of declaring and explaining the law arising on the evidence as to all the substantial features of the case. A mere declaration of the law in general terms and a statement of the contentions of the parties ... is not sufficient to meet the statutory requirement.” Glenn v. Raleigh, 246 N.C. 469, 98 S.E. 2d 913 (1957).

In the case before us, the issue was the amount of damages the defendants were entitled to recover. The court instructed the jury that the “. . . compensation must be full and complete, and include everything which affects the value of the property taken and in relation to the entire property affected.” The court further instructed the jury that the measure of damages was “the difference between the fair market value of the entire tract immediately prior to the taking, and the fair market value of the remainder immediately after said taking,” and that “. . . when you arrive at the difference in value under this rule, it will include compensation for the part taken and compensation for injury, if any, to the remaining portion.” The charge used by the trial court as to the measure of damages was in substantial compliance with G.S. 136-112 and with numerous decisions of our Supreme Court.

“Where only a part of a tract is taken, the measure of damages . . . shall be the difference between the fair market value of the entire tract immediately prior to said taking and the fair market value of the remainder immediately after said taking, with consideration being given to any special or general benefits resulting from the utilization of the part taken for highway purposes.” G.S. 136-112(1). See Highway Commission v. Black, 239 N.C. 198, 79 S.E. 2d 778 (1954); Proctor v. Highway Commission, 230 N.C. 687, 55 S.E. 2d 479 (1949) ; Highway Commission v. Hartley, 218 N.C. 438, 11 S.E. 2d 314 (1940).

Thus, the court properly and sufficiently explained the law as to all substantial features of the case.

Defendants next contend that the court erred in failing to allow the defendants’ motion to set aside the verdict pursuant to G.S. 1A-1, Rule 59. This assignment of error is without merit since a motion under Rule 59 is addressed to the sound discretion of the trial court, and will not be reviewed on appeal in the absence of abuse of discretion. Glen Forest Cory. v. Bensch, 9 N.C. App. 587, 176 S.E. 2d 851 (1970).

All of defendants’ assignments of error have been considered and are hereby overruled.

No error.

Chief Judge Brock and Judge Vaughn concur.