Davis v. Banks , 40 N.C. App. 415 ( 1979 )

VAUGHN, Judge.

Plaintiff first contends that the trial court erred in admitting an exhibit of records of the Buncombe County Department of Social Services pertaining to the condition of the decedent’s eyes. Plaintiff contends that this evidence was irrelevant and immaterial. Plaintiff concedes, however, that there was other evidence, admitted without objection, that tended to show that decedent was suffering from impaired vision and had undergone treatment for that condition. Even if we were to concede that some of the matters set out in the exhibit were incompetent, we would nevertheless conclude that plaintiff was not prejudiced thereby with respect to the jury’s answer to the first issue — that of defendant’s negligence. The jury, of course, did not reach the question of plaintiff’s contributory negligence or that of damages. “ ‘[I]n order to obtain an award for a new trial on appeal for error committed in a trial of the lower court, the appellant must show error positive and tangible, that has affected his rights substantially and not merely theoretically, and that a different result would have likely ensued.’ ” State v. Cross, 284 N.C. 174, 178, 200 S.E. 2d 27, 30 (1973) (quoting State v. Cogdale, 227 N.C. 59, 62, 40 S.E. 2d 467, 469 (1946)). This assignment of error is overruled.

In another assignment of error plaintiff argues that the judge erred when he instructed the jury on the law as it applies to a motorist who is faced with a sudden emergency. Plaintiff first argues that if there was a sudden emergency, it was created by defendant’s own negligence. She further argues that she did not contend that defendant was negligent after being confronted with the emergency. The assignment of error is without merit. It is the duty of the judge to declare and explain the law arising on the evidence, including the evidence of defendant. Defendant’s evidence tended to show that she was driving along in a careful and prudent manner when plaintiff’s intestate suddenly appeared in her lane of travel less than two car lengths away. She applied her brakes and tried to turn to her left to avoid striking plaintiff’s intestate but was unable to do so. When plaintiff’s allegations and evidence are considered along with defendant’s evidence, there were questions of fact for the jury as to whether defendant’s negligence created the emergency as well as whether she was negligent after she was faced with the emergency. The assignment of error is overruled.

Plaintiff’s final assignment of error addresses the failure of the trial judge to grant her motion to set aside the verdict and for a new trial. The denial of this motion is within the trial court’s discretion and, absent a showing of an abuse of this discretion, will not be disturbed. State Highway Commission v. Hemphill, 269 N.C. 535, 153 S.E. 2d 22 (1967).

Affirmed.

Judges Hedrick and Clark concur.