Opinion
(Filed 18 March, 1936.)
Appeal and Error J a —
The discretionary order of the trial court entered at the term of the trial setting aside the verdict as being contrary to the weight of the evidence is not reviewable, and an appeal therefrom will be dismissed in the absence of abuse of discretion. C. S., 591.
APPEAL from Phillips, J., at October Term, 1935, of WILKES. Dismissed.
J. M. Brown and Bowie Bowie for plaintiff, appellee.
T. E. Bingham and Trivette Holshouser for defendant, appellant.
Civil action wherein plaintiff alleged that he was injured by the negligence of the defendant in causing a collision of his automobile with the automobile of the defendant, and the defendant alleged the contributory negligence of the plaintiff. The jury answered the first issue as to negligence in favor of the plaintiff and the second issue as to contributory negligence in favor of the defendant. The defendant presented judgment to the effect that the plaintiff recover nothing, which the court declined to sign, and made the following entry: "The plaintiff requests the court in its discretion to set aside the verdict as being contrary to the greater weight of the evidence. The court in its discretion sets aside the verdict and orders new trial. When the court exercises its discretion in setting aside the verdict as being contrary to the weight of the evidence the defendant objects and excepts, and in open court gives notice of appeal to the Supreme Court."
The defendant makes as his only assignment of error the action of the court in declining to sign the judgment presented and in ordering the verdict set aside.
Where the trial judge, at the same term at which the trial is had, sets aside a verdict in his discretion as being contrary to the weight of the evidence his action is not subject to review on appeal, and, in the absence of abuse of discretion, an appeal therefrom will be dismissed. C. S., 591. Goodman v. Goodman, 201 N.C. 808, and cases there cited.
Appeal dismissed.