#### L. S. AND GERTRUDE GUNN v. BLUE BIRD TAXI COMPANY.

(Filed 24 November, 1937.)

Trial § S3—

Contradictory statements by plaintiff in bis examination in chief and in his cross-examination do not warrant the granting of defendant’s motion to nonsuit, it being for the jury to determine which version of the facts they will believe.

Appeal by defendant from *Hill, Special Judge,*at August Special Term, 1937, of MeoexeNburg.

Civil action by L. S. Gunn to recover damages for injuries to his automobile and action by Gertrude Gunn for personal injuries, and cross action by defendant against L. S. Gunn, by consent, consolidated and tried together, as all three Causes arise out of the same traffic collision.

On 12 November, 1936, a taxicab owned and operated by the defendant, collided with L. S. Gunn’s Chevrolet automobile at the intersection of Fifth Street and Laurel Avenue in the city of Charlotte. L. S. Gunn was driving his car at the time and with him was his wife, Gertrude Gunn. The husband sues for damages to his automobile, the wife for personal injuries. The jury awarded the husband $200 and the wife $3,840. Defendant recovered nothing on its cross action.

From judgments on the verdicts, the defendant appeals, assigning errors.

*J. L. DeLaney for plaintiffs, appellees.*

*J. Laurence J ones for defendant, appellant.*

Per Curiam.

In view of the equivocal and somewhat confusing, if not self-contradictory, testimony of L. S. Gunn, the jury might well *541have answered tbe issue of contributory negligence against bim in bis action, nevertheless there is some evidence to support tbe verdict, and tbe matter was for tbe twelve. *Hancock v. Wilson,*211 N. C., 129, 189 S. E., 631; *Jackson v. Scheiber,*209 N. C., 441, 184 S. E., 17; *Dozier v. Wood,*208 N. C., 414, 181 S. E., 336; *Lincoln v. R. R.,*207 N. C., 787, 178 S. E., 601; *Insurance Co. v. Edgerton,*206 N. C., 402, 174 S. E., 96; *Collett v. R. R.,*198 N. C., 760, 153 S. E., 405; *Wimberly v. R. R.,*190 N. C., 444, 130 S. E., 116.

Speaking to tbe point in *Shell v. Roseman,*155 N. C., 90, 71 S. E., 86, *Allen, J.,*said: “We are not inadvertent to tbe fact that tbe plaintiff made a statement on cross-examination as to a material matter, apparently in conflict with bis evidence when examined in chief, but this affected bis credibility only, and did not justify withdrawing bis evidence from tbe jury. *Ward v. Mfg. Co.,*123 N. C., 252.”

In similar fashion, in *Christman v. Hilliard,*167 N. C., 4, 82 S. E., 949, *Walker, J.,*reversing a nonsuit, remarked: “. . . tbe witness E. D. Christman bad tbe right to change bis mind, and it was for tbe jury to say which of tbe two statements made by bim they would accept.”

Again, in *Smith v. Coach Line,*191 N. C., 589, 132 S.. E., 567, *Brogden, J.,*speaking for tbe Court, said: “In *Shell v. Roseman,*155 N. C., 90, this Court has held that conflicting statements of a witness in regard to or concerning a material or vital fact does not warrant a withdrawal of tbe case from tbe jury. It affects only tbe credibility of tbe witness, and therefore, where inconsistent and conflicting statements are made by a witness or a party, tbe judge has no power to determine which is correct. This function belongs exclusively to tbe jury.”

Tbe case of tbe *feme*plaintiff presents little more than a controverted issue of fact, which tbe jury has determined in her favor. A careful perusal of tbe record leaves us with tbe impression that no substantial or reversible error has been made to appear. Hence, tbe verdicts and judgments will be upheld.

No error.