Murdock v. . R. R. , 159 N.C. 131 ( 1912 )

The facts are sufficiently stated in the opinion of the Court by MR. CHIEF JUSTICE CLARK. This is an action for personal injury. There was evidence that the plaintiff and others were engaged in carrying with their hands heavy steel rails, weighing about 850 pounds each. Under the direction of a foreman they were required to do this, causing (132) them to walk sideways. The plaintiff alleges that if steel tongs had been furnished, the rails could have been carried much more conveniently and when laid down would not have bounced and have injured him, this being the manner in which he was hurt.

The first exception is that the plaintiff was allowed to state whether or not in placing a rail with tongs the rail would bounce. This was not an opinion of the witness, but a fact which he stated from his own knowledge and experience, and the question was competent. Burney v. Allen,127 N.C. 476; S. v. McDowell, 129 N.C. 523; Britt v. R. R., 148 N.C. 37.

The second and third exceptions are because the plaintiff was allowed to testify that railroad tongs were approved and in general use. Orr v.Telephone Co., 130 N.C. 627; Rushing v. R. R., 149 N.C. 160. In Baileyv. Meadows Co., 154 N.C. 72, Brown, J., says: "It is not necessary that the plaintiff should prove that such tongs are used on every railroad, but the fact that they are in use on three railroad systems is sufficient evidence to justify the jury in finding that they were in general use." Indeed, it ought hardly to call for proof that it was negligence not to furnish an appliance so long in use and so well known. Orr v. TelegraphCo., 132 N.C. 691. The exceptions for refusal to nonsuit do not need to be discussed.

The defendant moved in this Court to set aside the verdict for misconduct of a juror. This motion, like that for a new trial for newly discovered testimony, must ordinarily be made before the trial court, but there is an exception (though in civil cases only, S. v. Lilliston,141 N.C. 865), when the knowledge does not come to the appellant till after the court below has adjourned. Turner v. Davis, 132 N.C. 187, and cases there cited. It is true, those cases were where the new trial was asked on the ground of newly discovered testimony; but the same principle must apply in a case of this kind. Upon reading the affidavits, we find that the affidavits of the appellant are denied and the declarations imputed to the juror are fully explained in the affidavit of the juror himself, which is filed by the appellee. As in motions for newly discovered testimony, it would serve no purpose to discuss the evidence, but the Court will simply render its decision. Brown v. Mitchell.102 N.C. 367; Herndon v. R. R., 121 N.C. 498, and cases (133) there cited; Crenshaw v. R. R., 140 N.C. 193. The motion is denied.

No error.

Cited: Caton v. Tolar, 160 N.C. 106; S. v. Ice Co., 166 N.C. 404.