{
  "id": 8548882,
  "name": "CECIL D. JERNIGAN, JR. v. ATLANTIC COAST LINE RAILROAD COMPANY",
  "name_abbreviation": "Jernigan v. Atlantic Coast Line Railroad",
  "decision_date": "1970-08-05",
  "docket_number": "No. 706SC431",
  "first_page": "186",
  "last_page": "188",
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      "cite": "240 N.C. 770",
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  "last_updated": "2023-07-14T14:50:15.842675+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Morris, J., concurs.",
      "Graham, J., concurs in separate opinion."
    ],
    "parties": [
      "CECIL D. JERNIGAN, JR. v. ATLANTIC COAST LINE RAILROAD COMPANY"
    ],
    "opinions": [
      {
        "text": "Brock, J.\nDependant\u2019s Appeal\nDefendant assigns as error the exclusion of the testimony of the witness Charles Carr relating to how far away the witness could see defendant\u2019s tracks at night. The witness\u2019 testimony was very indefinite and clearly amounted to no more than a guess; he clearly stated he did not know whether he saw the tracks or not. We think the testimony was properly excluded.\nDefendant assigns as error that the trial judge allowed plaintiff to testify concerning his present salary. This testimony was offered on the issue of damages for personal injury and appears to be insufficient to show decrease in earning power. If plaintiff feels that he has suffered a decrease in his earning-power by reason of the injuries complained of, he should be prepared to give more detailed testimony as to his physical condition and what he was able to earn before; and in what way- and to what extent the injuries have decreased his ability to-earn since the accident. However, since this assignment of error-relates to the issue upon which Judge Cohoon ordered a new trial, if there was error in admitting the fragmentary evidence-it has been cured.\nDefendant assigns as error certain portions of the judge\u2019s, charge to the jury. After a careful reading of the charge as a. whole, it appears to us that the charge was fair to the defendant, in all respects, and that the case was submitted to the jury upon, appropriate principles of law.\nDefendant assigns as error the failure of the Court to direct, a verdict in defendant\u2019s favor and the Court\u2019s failure to enter-judgment in defendant\u2019s favor notwithstanding the verdict. It seems clear that these same issues were resolved against defendant in the earlier appeal of this case (Jernigan v. R. R. Co., 275 N.C. 277, 167 S.E. 2d 269).\nPlaintiff\u2019s Appeal\nPlaintiff assigns as error the setting aside of the verdict on the issue of damages for personal injury.\nThe action of the trial judge in setting aside a verdict in his discretion is not subject to review on appeal in the absence of an abuse of discretion. Goldston v. Chambers, 272 N. C. 53, 157 S.E. 2d 676. And the trial court has the discretionary power to set aside the verdict on the issue of damages and order a new trial confined to that issue alone. Branch v. Gurley, 267 N.C. 44, 147 S.E. 2d 587. The record in this case discloses no abuse of discretion on the part of the trial judge.\nOn defendant\u2019s appeal, no error.\nOn plaintiff\u2019s appeal, no error.\nMorris, J., concurs.\nGraham, J., concurs in separate opinion.",
        "type": "majority",
        "author": "Brock, J."
      },
      {
        "text": "Graham, J.,\nconcurring.\nIn my opinion plaintiff\u2019s testimony as to his present salary was properly admitted. There was ample evidence to show that as a result of his injuries, plaintiff could not engage in the type of occupation followed by him before he was injured. Testimony as to his subsequent salary was relevant on the question of his diminished earning capacity. Owens v. Kelly, 240 N.C. 770, 84 S.E. 2d 163. It is my further opinion that the jury\u2019s award of damages was not excessive and was supported by the greater weight of the evidence. However, in view of the unbroken line of cases in which the appellate courts of this State have refused to question the exercise of discretion by trial courts in setting aside verdicts, I reluctantly concur in the results reached herein by the majority as to both appeals.",
        "type": "concurrence",
        "author": "Graham, J.,"
      }
    ],
    "attorneys": [
      "Allsbrook, Benton, Knott, Allsbrook & Cranford, by Julian R. Allsbrook and Richard B. Allsbrook, for plaintiff.",
      "Spruill, Trotter & Lane, by Charles T. Lane and John R. Jolly) for defendant."
    ],
    "corrections": "",
    "head_matter": "CECIL D. JERNIGAN, JR. v. ATLANTIC COAST LINE RAILROAD COMPANY\nNo. 706SC431\n(Filed 5 August 1970)\n1. Railroads \u00a7 5; Evidence \u00a7 15\u2014 crossing accident \u2014 competency of evidence\nThe trial court .in a railroad crossing accident case properly excluded the testimony of a witness as to how far away he could see the railroad tracks at night, where the witness\u2019 testimony was very indefinite and amounted to no more than a guess.\n2. Damages \u00a7\u00a7 3, 13\u2014 loss of earnings \u2014 requisite of proof\nA plaintiff who feels that he has suffered a decrease in his earning power by reason of the injuries complained of should be prepared to give detailed testimony as to his physical condition and prior earnings, and in what way and to what extent the injuries have decreased his ability to earn since the accident.\n3. Trial \u00a7 48\u2014 setting aside verdict \u2014 review on appeal\nThe action of the trial judge in setting aside a verdict in his discretion is not subject to review on appeal in the absence of an abuse of discretion.\n4. Trial \u00a7 48\u2014 setting aside verdict on issue of damages\nTrial court has the discretionary power to set aside the verdict on the issue of damages and order a new trial confined to that issue alone.\n5. Trial \u00a7 52; Railroads \u00a7 7\u2014 setting aside award \u2014 discretion of court\nIn an action arising out of a railroad crossing accident, the trial court acted within its discretionary power in setting aside an award of $100,000 for plaintiff\u2019s personal injuries and in ordering a new trial solely on the issue of damages.\nGraham, J., concurs in separate opinion.\nAppeal by plaintiff and defendant from Cohoon, J., 2 March 1970 Session, Halifax Superior Court.\nPlaintiff was injured when the automobile he was driving struck defendant\u2019s parked locomotive at a grade crossing in the town of Weldon. The facts of the case are reviewed in Jernigam, v. R. R. Co., 275 N. C. 277, 167 S.E. 2d 269, and will not be repeated here.\nThe jury awarded plaintiff the sum of $2,000.00 for damages to his automobile, and the sum of $100,000.00 for injuries to his person. Judge Cohoon signed a judgment in favor of plaintiff for the $2,000.00 damages to his automobile; but, in his discretion, set aside the verdict as to the issue of damages for personal injury, and ordered a new trial confined to the issue of damages for personal injury.\nPlaintiff and defendant appealed.\nAllsbrook, Benton, Knott, Allsbrook & Cranford, by Julian R. Allsbrook and Richard B. Allsbrook, for plaintiff.\nSpruill, Trotter & Lane, by Charles T. Lane and John R. Jolly) for defendant."
  },
  "file_name": "0186-01",
  "first_page_order": 210,
  "last_page_order": 212
}