Opinion · Court of Appeals of North Carolina

Bowen v. Jones

Bowen v. Jones, 21 N.C. App. 224 (N.C. Ct. App. 1974)

Type
Opinion
Court
Court of Appeals of North Carolina
Jurisdiction
North Carolina
Date
1974-04-03
Topic
litigation

VAUGHN, Judge. Although defendant argues that his motions for directed verdict and judgment notwithstanding the verdict should have been allowed, we are of the opinion that the evidence made out a case for consideration by the jury. There must be a new trial, however, for errors committed when the court did not allow certain testimony from defendant. *225Plaintiff introduced testimony from several witnesses to the effect that defendant did not have the odor of alcohol about him immediately after the accident. Plaintiff also elicited testimony tending to show that there was no odor of alcohol about plaintiff’s intestate immediately after the accident. Defendant thereafter attempted to testify, in effect, that he and plaintiff’s intestate had been together for several hours and that both of them had been drinking.

Citator

UpLaw has not yet analyzed Bowen v. Jones. The absence of a flag is not a finding that it is good law.

VAUGHN, Judge.

Although defendant argues that his motions for directed verdict and judgment notwithstanding the verdict should have been allowed, we are of the opinion that the evidence made out a case for consideration by the jury.

There must be a new trial, however, for errors committed when the court did not allow certain testimony from defendant. *225 Plaintiff introduced testimony from several witnesses to the effect that defendant did not have the odor of alcohol about him immediately after the accident. Plaintiff also elicited testimony tending to show that there was no odor of alcohol about plaintiff’s intestate immediately after the accident. Defendant thereafter attempted to testify, in effect, that he and plaintiff’s intestate had been together for several hours and that both of them had been drinking. That testimony was excluded by the court. Plaintiff, having offered evidence on the material question of the sobriety of the parties, waived such right as he might have had under G.S. 8-51 to object to rebuttal testimony on the same question from defendant. Pearce v. Barham, 267 N.C. 707, 149 S.E. 2d 22; Carswell v. Greene, 253 N.C. 266, 116 S.E. 2d 801; Bryant v. Ballance, 13 N.C. App. 181, 185 S.E. 2d 315, cert. den., 280 N.C. 495, 186 S.E. 2d 513.

New trial.

Judges Hedrick and Baley concur.