Bradley v. . Manufacturing Co. , 177 N.C. 153 ( 1919 )

BROWN, J., not sitting. Plaintiff alleged that the timber, brush, rails, and fences on his land were burned by sparks which came from defendant's locomotive engine as it passed near plaintiff's premises, and that the fire was caused by the negligence of the defendant.

There was ample testimony to show that the fire was set out by defendant's engine, and the jury found that it was negligently done, and assessed the damages. Defendant appealed from the judgment upon the verdict. As to Massey's testimony concerning the value of the timber, there was no error, because he testified that, irrespective of what he got for his own timber, or its value, he was of the opinion that the difference in value of plaintiff's land before and after the fire was between $15 and $20 per acre. We do not concede, though, that the objection was made in proper time, or that it was not within the discretion of the court whether or not it would consider it.

The question asked the witness, J. A. Shaw, was leading, and properly excluded on that ground, even if it was otherwise competent, (155) which it seems not to be. G. F. U. Warehouse Co. v. Am. Agr. Chemical Co., 176 N.C. 509.

The remarks of counsel to which exception was taken were not such a flagrant abuse of their privilege as to be ground for a new trial. It is apparent that no real harm was done, and the jury doubtless passed it by, without prejudice, as being merely a too fervid utterance of counsel in the heat of debate. It was intended only to emphasize the absurdity of defendant's very small estimate of the plaintiff's loss. It is one of the inseparable incidents of all trials, and should not be taken too hard, but overlooked upon the principle of "give and take." It was provoked, too, by what the defendant had previously said.

The judge's charge as to damages was sufficient to prevent injury to the defendant in this case from the remark.

We do not agree with the learned counsel that there was any intimation of opinion by the court upon the facts. When it is supposed to have occurred, the judge was only stating the allegations, or contentions, of the plaintiff, and the nature of the case, and not expressing any view of his own. If he misstated them, his attention should have been called to it then, when timely correction could be made by him. It is too late after verdict to complain. Jeffress v. R. R., 158 N.C. 215; S. v. Cox,153 N.C. 638; S. v. Blackwell, 162 N.C. 672; S. v. Merrick, 172 N.C. 870;S. v. Johnson, ibid., 920; S. v. Earl Neville, 175 N.C. 731. He who fails to speak when his time comes to be heard will not be heard when he should be silent. He will not be allowed two chances at the verdict. S. v. Tyson,133 N.C. 692. But a mere recital of contentions, as we have seen, is no expression of an opinion upon the facts or the weight of the testimony.Jarvis v. Swain, 173 N.C. 9. Restricting plaintiff's maximum recovery to the amount stated in the complaint was in favor of defendant, and surely is no expression of opinion that the damages should be the amount thus claimed. If defendant desired more specific instructions as to damages, it should have asked for them.

The charge upon negligence, when considered as a whole, was in accordance with our decisions upon the subject. Aycock v. R. R.,89 N.C. 321; Williams v. R. R., 140 N.C. 623; Knott v. R. R.,142 N.C. 242; Haynes v. Gas Co., 114 N.C. 207; Cox v. R. R.,149 N.C. 117; Kornegay v. R. R., 154 N.C. 389; McRainey v. R. R.,168 N.C. 570; Aman v. Lumber Co., 160 N.C. 370, and especially Boney v.R.R., 175 N.C. 354, where the principal cases are collected and the doctrine stated. The charge must be construed as a whole. Kornegay v. R.R.,supra.

There was sufficient evidence to prove that the track was foul, and also the space within 10 feet of it, and that the fire started there and burned the adjoining lands. It was for the jury to say whether the engine was properly equipped and handled, as the cases we have just cited show; and it was for the defendant to satisfy the jury (156) that there was no negligence in this respect to take the chance of an adverse verdict. The facts were peculiarly within its knowledge, as it had the possession and control of the engine, and could establish them better than could the plaintiff. Haynes v. Gas Co., supra.

We may further say that the exception to the charge is too broad, as it embraces two separate propositions, one of which is plainly correct. Quelchv. Futch, 175 N.C. 694, and cases cited.

There is no merit in the other exceptions.

No error.

Cited: Harris v. Harris, 177 N.C. 11; Winchester v. Winchester,177 N.C. 485; S. v. Baldwin, 177 N.C. 698; S. v. Caylor, 177 N.C. 808;Hall v. Giessell, 179 N.C. 660; S. v. Chambers, 180 N.C. 708; S. v. Love,187 N.C. 39; Dickerson v. R. R., 190 N.C. 300; S. v. Steele, 190 N.C. 510;Mfg. Co. v. R. R., 191 N.C. 111; Dulin v. Henderson-Gilmer, 192 N.C. 641.