McCord v. . R. R. , 130 N.C. 491 ( 1902 )

The plaintiff was employed by the defendant to assist in digging a well 20 feet square for the use of its road. There was a crosspiece over said well, used as a crossway by those digging the well. The plaintiff objected that this crosspiece was not secure, whereupon the defendant's "boss" in charge of the work made a show of fixing said crosspiece, and assured plaintiff that said crosspiece was all right, in consequence of which assurance, and relying upon it, the plaintiff attempted to go out upon said crosspiece to turn off the steam jet, which was part of his duty; but said crosspiece having been insecurely fixed, it turned and threw him into the well, whereby he was injured.

At the close of the plaintiff's evidence, and again at the close of all of the evidence, the defendant moved for a nonsuit, and the refusal to do so is the ground of the defendant's first and third exceptions.

There was much evidence in support and in contradiction of the above, but as on this motion the evidence must be taken most strongly in favor of the plaintiff, it is clear that the court could not hold that there was no evidence sufficient to go to the jury. The plaintiff testified that it was his duty to turn off the steam jet, and the earth being banked, mud knee-deep all around the piling except at the place where the crosspiece was laid, and that there was no appliance or means provided by the company to reach the jet except by going out on this crosspiece, which was provided for that purpose, and that he was careful to observe and test that crosspiece, and at his instance it was worked upon, and he was assured by the "boss" that it had been made safe; that it was, in fact, an unsafe appliance, and he was injured in consequence. It being the plaintiff's duty to go out on the crosspiece, it was negligence in the defendant to give him an unsafe place and appliance for his work. Upon this evidence, the court could not do otherwise than to submit the issues as to negligence and contributory negligence to the jury.

(493) The defendant put in evidence a paragraph of the plaintiff's complaint as an admission against him. Whereupon the court allowed the plaintiff to put in evidence the other paragraphs of the complaint which referred to the same matter, and which he contended explained it. It is elementary that when part of a declaration or admission is put in evidence, the party making it has a right to have the whole of the declaration brought out. Whether it explains or modifies the other part already in evidence is for the jury. This disposes of the second exception.

The fourth exception is to "giving prayers asked by the plaintiff," but the case as settled by the judge shows none, and that must govern, even if the appellant had set out the alleged prayers, which he does not. Pattersonv. Mills, 121 N.C. 258, and other cases cited in Clark's Code (3 Ed.), page 762. There is no exception to the charge of the court, which, besides, is very full and clear, and entirely fair to the defendant.

The fifth and last exception is to the refusal of a new trial upon the foregoing exceptions.

No error.

(494)