
122 S.E.2d 70 (1961)
255 N.C. 478
Sue Lee PARKS, By Her Next Friend, Alvaro Garcia
v.
John Wesley WASHINGTON and Mangum Trucking Company, Inc., a Corporation.
William J. FLOWE, By His Next Friend, Mrs. S. A. Flowe
v.
John Wesley WASHINGTON and Mangum Trucking Company, Inc., a Corporation.
No. 249.
Supreme Court of North Carolina.
October 11, 1961.
*72 Kennedy, Covington, Lobdell & Hickman, Charlotte, for defendant appellants.
Bailey & Booe, Charlotte, for plaintiff appellees.
RODMAN, Justice.
Defendants' assignments of error are directed to (a) the admission of asserted incompetent and prejudicial evidence, and (b) the asserted insufficiency of the charge directed to the issues of damages.
The asserted incompetent evidence was directed to plaintiffs' allegation that Washington operated his motor vehicle "while under the influence of intoxicating liquor, in direct violation of North Carolina General Statutes, Sec. 20-138." At the time of the collision both motor vehicles were traveling in the direction of Charlotte and away from Monroe. Plaintiffs were, without objection, permitted to testify to physical conditions at the scene of the collision, the speed of their vehicle, the fact that it was struck from the rear and with such force as to cause it to turn over four or five times. Highway Patrolman Thomas investigated the collision. He testified to physical conditions observed by him at the scene of the collision and to statements made by plaintiffs. He was asked if he talked with Washington at the scene of the collision. Defendants objected to statements emanating from Washington. The record does not show that any reason was given for the objection at that time. At their request the court excused the jury. It heard the testimony. The witness said that he did not have a conversation with Washington at the scene of the collision but did in Charlotte. Over defendants' objection the court admitted this evidence: "Q. All right, sir, Officer Thomas, would you state whether or not the defendant, John Wesley Washington, made any statement to you in regard to his condition at the time of his wreck?" "A. He stated to me just prior to the time he left Monroe he drank a pint of Whiskey." Over defendants' objection a police officer of Charlotte was asked to describe the condition of defendant Washington when seen in Charlotte shortly after the collision. Defense counsel said: "The defendant at *73 this point would like to interpose an objection to any further testimony he might give would be irrelevant to the issues involved in view of the stipulation made at the beginning of the case." The objection was overruled and witness answered: "He was passed out drunk * * *"
The record discloses these seemingly contradictory positions taken by defendants during the trial: (1) Having specifically denied the acts of negligence detailed in the complaint, nevertheless: "On the coming on of the trial of these causes, Mr. A. Myles Haynes, counsel for defendants, from the firm of Kennedy, Covington, Lobdell & Hickman, appeared for the defendants, and each of them, and admitted and stipulated in open court that the defendant Washington was negligent on the occasion with reference to which these actions pertain." It is to be noted that the stipulation does not particularize the act of negligence alleged. More important, it does not specifically concede that Washington's negligence was the proximate cause of plaintiffs' injuries, although perhaps subject to that inference. (2) At the conclusion of plaintiffs' evidence and at the close of the evidence, defendants moved for judgment as of nonsuit. Why, if the admission was intended to admit liability for injuries negligently inflicted? Clark v. Emerson, 245 N.C. 387, 95 S.E.2d 880.
(3) The record does not disclose who prepared or tendered the issues. No exception was taken by defendants, however, to the submission of the first issue. If the right to recover was at issue, plaintiffs were entitled to offer evidence to support their allegations. (4) The court charged the jury that the parties had stipulated that the jury might answer the first issue "yes" in each case. No exception was taken to this charge. (5) Notwithstanding the charge, when the verdict was returned "the defendants and each of them move to set it aside as being against the greater weight of the evidence, and for a new trial, motion overruled and the defendants except. The defendants then move to set the verdict aside as being excessive and for a new trial, motion overruled and defendants except." It may well be that the seemingly contradictory positions taken by defendants misled the court and the counsel for plaintiffs with respect to the extent of the admission and that the admission did not comprehend proximate cause so as to make the admitted negligence actionable.
But treating the stipulation as an admission of liability, as portions of the record indicate it should be treated, we must determine whether the evidence was improperly received and hence a new trial should be awarded.
Clearly the evidence was competent on the first issue. If that question was not before the jury and only the question of damages was to be determined, it would have been much better and much simpler to have limited the questions referred to the jury to that single question.
It is elementary that a party is not required to offer evidence to establish that which has been judicially admitted. Chisholm v. Hall, N.C., 121 S.E.2d 726; State v. Powell, 254 N.C. 231, 118 S.E.2d 617; State v. Martin, 191 N.C. 401, 132 S.E. 14. But the mere fact that immaterial evidence is received is not of itself sufficient to warrant a new trial. As said by Faircloth, C. J., in Collins v. Collins, 125 N.C. 98, 34 S.E. 195, 196: "The admission of irrelevant testimony will not authorize a new trial unless it appears that the objecting party was prejudiced thereby." Ray v. French Broad Elec. Membership Corp., 252 N.C. 380, 113 S.E.2d 806; Stathopoulos v. Shook, 251 N.C. 33, 110 S.E.2d 452; In re Will of Crawford, 246 N.C. 322, 98 S.E.2d 29; Davis v. Vaughn, 243 N.C. 486, 91 S.E.2d 165; State v. Galloway, 188 N.C. 416, 124 S.E. 745; Deming v. Gainey, 95 N.C. 528; State v. Manly, 95 N.C. 661.
As said by Johnson, J., in Perkins v. Langdon, 237 N.C. 159, 74 S.E.2d 634, 649: "Verdicts and judgments are not to be set aside for mere error and no more. To accomplish this result it must be made to *74 appear not only that the ruling complained of is erroneous, but also that it is material and prejudicial, and that a different result likely would have ensued, with the burden being on the appellant to show this."
We are asked to hold as a matter of law that the evidence directed to the first issue in fact inflamed the jury and caused it to award more than fair compensation for the injuries sustained. What defendants now seek to accomplish could have been done by the trial judge as a matter of discretion, and should have been done if there was a miscarriage of justice. He was not limited to a mere question of legal right. He was expressly requested to exercise his discretion by setting aside the answers to the third issues because of the assertion that the amounts awarded were excessive. He refused to do so. His experience of more than thirty years on the bench eminently qualified him to evaluate the testimony. His service has demonstrated his learning and his desire to have litigation end in justice to all who appear before him.
Plaintiffs testified to painful injuries from which they continued to suffer until the day of the trial (a year after the collision) and from which the jury could infer the injuries were permanent. On the other hand, there was evidence from which the jury could find the injuries were negligible and in no way permanent.
What was fair compensation was, on all the evidence, a question of fact for the jury. We cannot, on this record, conclude as a matter of law that the jury, in disregard of its oath, failed to apply the rule for measuring damages as given by the court.
The rule by which damages are to be measured in cases of this character is stated in Mintz v. Atlantic Coast Line R. R., 233 N.C. 607, 65 S.E.2d 120. The charge conformed to the rule so stated. If defendants wished amplification of any phase, they should have given notice of their desire by proper requests.
No error.
