Opinion
(Filed 6 November, 1929.)
Appeal and Error J e — Where plaintiff could not recover on any aspect of case he will not be awarded a new trial.
Where the plaintiff cannot recover in his action under any aspect of the evidence, error which may have been committed upon certain phases of the case will not be regarded as reversible, and a new trial will not be granted.
APPEAL from MacRae, Special Judge and a jury, at April Special Civil Term, 1929, of DAVIDSON. No error.
Walser Walser for plaintiff.
McCrary DeLapp for defendant.
This is an action for actionable negligence, brought by plaintiff against defendant claiming injury to his left eye. The defendant denied negligence and set up plea of contributory negligence and assumption of risk.
The usual issues were submitted to the jury and the answer to the first one: "Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint?" was No.
If there is error in the trial of this action in the court below, we think it harmless. From the evidence appearing in the record, we do not think it sufficient to have been submitted to the jury to sustain a recovery for actionable negligence.
If error should be found and a new trial granted, it would not profit plaintiff. If a new trial was awarded no different result could follow. The entire testimony relevant to the issues was before the court. From this evidence it is apparent that in no aspect of it could plaintiff recover. In such cases our decisions are to the effect that a new trial will not be granted. Bateman v. Lumber Co., 154 N.C. 248; Booth v. Hairston, 193 N.C. 278. For the reasons given, there is
No error.