Dobson v. . R. R. , 132 N.C. 900 ( 1903 )

This action was brought to recover damages for the destruction of a flour mill belonging to the plaintiffs, together with the machinery and stock therein, which plaintiffs alleged was caused by the negligent emission of sparks from one of defendant's engines.

In order to establish the negligence of the defendant the plaintiff introduced A. B. Finch, who had been examined as a witness at a former trial, and attempted to prove by him that the netting of the spark arrester was too coarse to prevent the escape of sparks from the engine. The plaintiff's counsel subjected this witness to a very severe and rigid cross-examination which we think was calculated to impeach his credibility and to disparage him before the jury, and thereby (901) prejudice the defendant. The examination was contrary to the rules and practice of the courts which obtain in such cases and should not have been allowed, if it had been objected to in apt time and in the proper way. A party may waive his right to the exclusion of incompetent testimony, ever so objectionable, if he fails to assert his right in due time; and so, when a witness is being examined in an improper manner, the objection to the character of the examination should be made known in apt time, otherwise the party prejudiced will be deemed to have waived it. A large part of the testimony of the witness Finch was incompetent because it was hearsay; but the defendant, so far as the record discloses, did not enter any objection in the manner required by law. Objection should be interposed when the incompetent questions are asked. It will not do to object after the question has been asked and answered. This would give the objector two chances, one to exclude the testimony if unfavorable to him and the other to make use of it if favorable; and for this reason the law requires that parties should act promptly or else the right to have testimony excluded, or the examination conducted within proper limits, will be waived.

Defendant introduced as a witness Charles A. Boyd, who testified that he was tax lister for the year in which the fire occurred, and that the machinery which was in the mill was listed by Dobson Whitley, who told him that it cost $2,300. That he valued it at $1,200 for taxation, and they said they thought that was very high. D. J. Dobson, one of the plaintiffs, had testified that the machinery was worth $2,375.45, which was its original cost with freight charges added, and the plaintiffs placed that valuation upon it in this action. With reference to the damages the court charged as follows:

"On the point as to the value of the machinery, the loss and value of flour and other personal property, you have the uncontradicted (902) testimony of plaintiffs, but you must pass upon the evidence as to its truthfulness and as to the value and loss, and say how it is. What is the value of the property lost, the machinery, scales, and tools?" And again: "Upon these items you have the evidence of the plaintiff alone, the defendant offering no evidence to contradict the witness as to the value he places upon these articles." The defendant excepted to each of these instructions; and we think that they were erroneous. The testimony of C. A. Byrd tended to contradict that of the plaintiffs as to the value of the machinery, and the court should not have told the jury, in view of Byrd's testimony, that the defendant had offered no testimony to contradict the plaintiffs upon this point. The charge practically withdrew Byrd's testimony from the consideration of the jury, when it tended directly and strongly to contradict the plaintiff's testimony as to the value of the machinery. It tended to show that while they had insisted on one valuation of the property at the trial, they had objected to the tax lister that a lower valuation was too high for the purpose of taxation.

In any view of the case, it was some evidence to go to the jury as to the true value of the property, and the defendants were entitled to have it submitted to the jury in the charge of the court. For this error there must be a new trial; and as we think the examination of the witness Finch may, under the facts and circumstances of the case, have prejudiced the defendant, though it was not objected to in the proper manner, we direct, in the exercise of our discretion, that the new trial shall extend to all of the issues.

New trial.