Gentry v. . Utilities , 185 N.C. 285 ( 1923 )

Civil action to recover damages for an alleged negligent injury received by plaintiff while engaged in unloading some large chestnut poles from a flat car. There was evidence that the defendants failed to provide skids, as was customary, in unloading poles from cars of the kind in question; and that an insufficient number of men were trying to unload the poles on a rainy morning while they were slipper and difficult to handle, etc. The work was being done under the direction of the defendant, Will Sprinkle, who was a foreman or vice-principal of the Southern Public Utilities Company.

The usual issues of negligence, contributory negligence and damages were submitted to the jury and answered by them in favor of the plaintiff. The defendants appealed, assigning errors. On the argument, defendants insisted upon their exceptions to the refusal of the court to grant their motion for judgment as of nonsuit, made first at the close of the plaintiff's evidence, and renewed at the close of all the evidence. The first exception has been waived by the defendants.Smith v. Pritchard, 173 N.C. 720. They had the right to rely on the weakness of the plaintiff's evidence when he rested his case; but, having elected to offer testimony in their own behalf, they did so cum onere, and only their exception noted at the close of all the evidence may not be urged or considered. C.S. 567; Blackman v. Woodmen, 184 N.C. p. 77.

Without reciting the evidence, which is to be taken in its most favorable light for the plaintiff on a motion of this kind, we think his Honor was clearly correct in submitting the case to the jury.

The tenth and eleventh exceptions are directed to the following portion of the plaintiff's testimony:

"Q. Please state to the jury whether or not they had sufficient hands on the flat car to carry on the work?

"Objection; overruled; defendant excepts.

"A. No, sir; they didn't have sufficient help up there.

"Defendant moved to strike out the question and answer; motion overruled; defendant excepted.

"The Court: You say they did not provide sufficient help? A. Yes, sir.

"The Court: Why did they need other help? A. If I had another man to have held these poles, been another man up (287) on the car with me, he could have held these poles while I loosened that pole."

Defendants contend that the admission of this evidence in the manner and form in which it was offered is violative of the rule announced in Marshallv. Tel. Co., 181 N.C. 292; Kerner v. R. R., 170 N.C. 94; Lumber Co. v. R.R., 151 N.C. 221; Marks v. Cotton Mills, 135 N.C. 287, and other cases to like import; but it will be observed that that part of plaintiff's testimony given in response to inquiries from the court was admitted without objection, and this would seem to render the other portion harmless, even if it were objectionable in the first instance. Tillett v. R. R., 166 N.C. 520; Ledford v. Lumber Co.,183 N.C. 616. But speaking to a similar question in Hollifield v. Tel. Co.,172 N.C. 724, Walker, J., said: "The court did not err in allowing plaintiff to testify how the injury was received or what caused it, and why more hands were needed. He was merely stating facts within his own knowledge. In other words, he was stating what he had seen and the nature of which he understood by former experience. It was not merely an opinion. Murdock v. R. R., 159 N.C. 131; Britt v. R. R., 148 N.C. 37; and especially Ives v. Lumber Co., 147 N.C. 306, which is similar in this respect." See, also, Marshall v. Tel. Co.,181 N.C. 410.

The next exception relied on by defendants is the one directed to the following portion of his Honor's charge: "If the plaintiff has satisfied you by the evidence and by the greater weight thereof, that his injury was caused by the negligence of the defendants; that is, that the defendants failed to do what a reasonable and prudent man would have done under like circumstances with regard to unloading these poles, then you will answer the first issue `Yes,' otherwise, you will answer it `No.'"

This excerpt, standing alone, with no reference to proximate cause, might appear to be subject to some criticism; but, taken in connection with the whole charge, we do not think it could have left an erroneous impression with the jury. White v. Realty Co., 182 N.C. 538. His Honor had previously and just immediately before charged adequately on the subject of actionable negligence, telling the jury that the burden was on the plaintiff to establish both a want of due care on the part of the defendants and a causal connection between this and the plaintiff's injury. The breach of a legal duty, owing by defendants to plaintiff, which proximately produced the injury is sufficient to establish liability in an action like the present. Ramsbottom v. R. R., 138 N.C. 41; Drum v. Miller,135 N.C. 215.

After a careful perusal of the entire record, we have discovered no exception which we apprehend should be held for reversible error.

No error.

Cited: Hanes v. Utilities Co., 191 N.C. 19; Willis v. New Bern,191 N.C. 514; Tyler v. Howell, 192 N.C. 437; Bryant v. Construction Co.,197 N.C. 642; Owens v. Lumber Co., 212 N.C. 139; Lane v. Drivers Assoc.,252 N.C. 769.