Barnes v. Teer

DeviN, J.,

dissenting: I think this case was fairly tried by a competent judge and an intelligent jury, and the result ought not to be disturbed. After careful consideration of the case by this Court, following arguments clearly presenting both sides, it was so held. Barnes v. Teer, 218 N. C., 122, 10 S. E. (2d), 614. A majority of the Court now vote for a new trial. I cannot agree.

The case as originally tried was almost entirely a question of fact, arising out of conflicting claims about a collision of motor vehicles on the highway. No unusual or complicated principle of law was involved. It was a ease where each party claimed he was on the right side of the road and the other party on the wrong side. Jurors familiar with the operation of automobiles and capable of judging the credibility of witnesses decided in favor of the plaintiff. Their decision ought to stand. -Verdicts and judgments ought not to be set aside except for some reason materially impeaching the fairness of the trial, or for some error of law prejudicial to the complaining party, and which obviously affected the result. It has been repeatedly said by this Court that the burden is on the appellant not only to show error but also to show that the ruling-complained of was material and prejudicial, amounting to a denial of some substantial right. Collins v. Lamb, 215 N. C., 719, 2 S. E. (2d), 863.