Holder v. Giant Lumber Co.

Civil action. The following issues were submitted to the jury:

1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

2. Did the plaintiff, by his own negligence, contribute to his own injury? Answer: No.

3. What damage is the plaintiff entitled to recover? Answer: $800.

From the judgment rendered, the defendant appeals.

(178) The facts are sufficiently stated in the opinion of the Court by MR. JUSTICE BROWN. The principal question discussed on the argument of this case by the learned counsel for the defendant is not presented in such a manner that we can consider it. As to whether there is sufficient evidence of negligence to justify the submission of the question to the jury can only be presented by a motion to nonsuit, or by a proper prayer for instruction.

No motion to nonsuit appears to have been made, and we are debarred from considering the prayers for instruction because of the objection of the plaintiff that they were not filed within the time required by the statute.

After the argument commences it is well settled that counsel will not be permitted to file requests for special instructions without leave of the court, and no such leave appears to have been given in this case, for the court declined to consider the prayers after they were handed up.

In Craddock v. Barnes it is said the time within which special instructions should be requested must be left to the sound discretion of the presiding judge, and this Court will be slow to review the exercise of such discretion; but the judge must so order his discretion as to afford the counsel a reasonable time to prepare and present their prayers.142 N.C. 89; Biggs v. Gurganus, 152 N.C. 176.

The assignments of error relating to the hypothetical questions asked Dr. Duncan, we think, are without merit. It is unnecessary to set out the questions themselves. The opinion asked of the witness did not trespass at all upon the province of the jury. These questions only elicited from the physician his opinion of the effect of the wound upon the knee, and also his opinion upon the cause of the suffering alleged to have been endured by the plaintiff. We think the hypothetical questions were framed correctly, according to the rule laid down inSummerlin v. R. R., 133 N.C. 551.

We do not think the assignments of error relating to the charge (179) of the court can be sustained. His Honor seems to have followed the well settled decisions of this Court relating to the duty of the master to furnish proper tools and appliances to his servant. Mercer v. R. R.,154 N.C. 400, and cases cited.

Upon a review of the entire record, we find

No error.

Cited: S. v. Claudius, 164 N.C. 526.