Porter v. &quot

• Decision Date: 09 May 1887
• Citation: 97 N.C. 63,2 S.E. 580,97 N.C. 66
• Court: North Carolina Supreme Court
• Parties: Porter, Adm'r, v. "Western IS". C. R. Co.

2 S.E. 580

(97 N.C. 63)

(97 N.C. 66)

Porter, Adm'r,

v."Western IS". C. R. Co.

Supreme Court of North Carolina.

May 9, 1887.

1. Appeal—Record—Amendment.

On an application by a petition for the writ of certiorari to amend a case on appeal, where it was merely alleged that the judge would probably make a change or addition to the case if the matter was again brought before him, held, that to entitle applicant to have his petition granted the ground of applicant's belief should have been given, and it ought to appear, upon facts shown, that the court would probably make the correction.

2. Same—Pleadings—Presumption.

An objection that issues submitted to the jury were not justified by the pleadings cannot first be taken in the appellate court. A presumption of consent obtains.

3. Verdicts—General and Special.

Under section 408, Code N. C, defining a general verdict as "that by which the jury pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant, " and a special verdict as "that by which the jury find the facts only, leaving the judgment to the court, " simple responses of " Yes" or "No " to issues submitted constitute general, not special, verdicts; and, in case of inconsistency between such responses, the rule which requires a special verdict to prevail over a general one has no application.

4. Same—Contradictory Findings—New Trial.

In an action against a railroad company to recover for injury to an employe, the jury answered " No " in response to the issue, " Did plaintiff's intestate contribute to his own injury by his negligence?" and " Yes " to the issue, " Did plaintiffs intestate know that said A. [a locomotive engineer whose carelessness caused the accident] was incompetent, inefficient, or careless in running an engine, and with such knowledge remain in the service of the defendant until he was killed?" Held, that the findings were contradictory, requiring a new trial; Smith, C. J., dissenting, on the ground that the second finding should be construed to mean that plaintiff's intestate assumed the risk resulting from the engineer's known carelessness, that, thus construed, the findings were not contradictory, and that defendant was entitled to judgment.

Appeal from Buncombe county.

Batchelor & Devereux, for plaintiff.

Schenck & Price and C, M. Busiee, for defendant.

on application for writ of certiorari.

Smith, C. J. The petition of the defendant for the writ of certiorari represents that plaintiff's counsel prepared the case on appeal, which, with defendant's exceptions, were delivered to the presiding judge for his examination and settlement; that, as settled by him, petitioner is informed it was sent by mail to the clerk of the superior court of Buncombe, but for some reason never reached his office; that, about three months later, another case was made out by the judge, and sent to the clerk, and is that certified in the transcript in this court; that the present case, unlike what he learns was the former, does not, as did the other, set out the facts in full; that, among the imperfections, the case omits to state that the first issue was changed after verdict, but in what particular is not shown; that it fails to state that the fourth issue, to which the next is a natural sequence, was submitted, at the plaintiff's instance, after the argument had begun, and over defendant's exception; that the jury were charged upon each issue, and the responses thereto treated as a special verdict; "that it is probable that his honor would make the suggested corrections if he had opportunity to do so." The petition is signed by counsel, and the facts in it sworn to by one of them, while a separate affidavit on another matter is filed by the other. The plaintiff in his answeradmits the allegations made in regard to the preparation of the case on appeal, but, in reply to the charge of omission, says that the only change in the first issue was in adding to it, as first framed, the concluding words, "by the defendant, " which was suggested by the court, and this was done "by consent of counsel for defendant;" that no complaint is made of the manner of setting out the evidence, and that the defendant's counsel expressed at the trial his satisfaction with the verdict, and, deeming it favorable for the defense, moved for and obtained judgment thereon against the plaintiff.

There is no sufficient ground shown for our interposition in giving an opportunity to the judge to modify the statement, nor do those suggested appear material in disposing of the appeal. Thedefendant does not appeal from any ruling of the court, and the sole inquiry is as to the judgment that should be rendered upon the facts ascertained. Moreover, there are no reasons suggested why the judge would favorably entertain an application for amendment, and no fact stated to warrant the opinion that he would "probably" make any change or addition if the matter was again brought before him. The grounds of the applicant's belief should be given, that we may judge of their sufficiency. If reasonable grounds exist, and they so appear, this court may cause the matter complained of to come again before the judge, to enable him to review it, and "to correct any error as he may deem proper." McDan-iel v. King, 89 N. C. 29. It ought to appear, upon facts shown, "that the court would probably make the correction." Curriev. Clark, 90 N. C. 17; Cheek v. Watson, Id. 302; Ware v. Nisbet, 92 N. C. 202. Where the action of the court has been careful and considerate, no occasion for "interference is presented." State v. Gooch, 94 N. C. 986.

Such we deem the present application, and the writ must be refused.

(June 14, 1887.)

ON the merits.

Merrimon, J. The following is the single paragraph of the complaintthat gives rise to the issues of fact and law that arise in this case: "(3) That on or about the fifth day of May, 1883, the said Daniel Donavin, the intestate of the plaintiff, was employed by and in the service of the said defendant company as a laborer and watchman at the Swannanoa tunnel, on said railroad, in connection with its business of operating said railroad; that while he was employed, and duly engaged about his business in the employ of said defendant company, the said defendant company unskillfully, carelessly, negligently, and recklessly, so managed, moved, and ran one of its engines as to strike and run said engine against, upon, and over the body of the said intestate, and thus instantly to kill him, the said intestate; and that the plaintiff, by reason of such killing of his said intestate, has become entitled to recover from the said defendant company thirty thousand dollars."

The material parts of the answer are as follows: "(3) Defendant admits that Donavin was a watchman in its employment at Swannanoa tunnel. Defendant denies the rest of allegation No. 3." Defendant for a defense says:

(1) That it is informed and believes that the deceased came to his death by his own negligence in not getting out of the way of an engine, and by not being in his proper place when killed; or (2) that if he was killed through nesrligence at all, it was by the negligence of the engineer running the engine, who was a fellow-servant of the deceased; or (3) that it was some unknown cause or accident for which defendant is not liable."

At the trial the court submitted to the jury issues whereof the following are copies, to which they responded as stated at the end of each: "(1) Was the plaintiff's intestate injured by the unskillful, careless, and negligent management of one of the defendant's engines by the defendant? Answer. Yes.

(2) Did plaintiff's intestate contribute to his own injury by his negligence?

A. No. (3) Was the death of plaintiff's intestate caused by the negligence of Jack Edwards, an engineer and fellow-servant of plaintiff's intestate? A. Yes. (4) Did the defendant company retain the said Edwards in its service after the defendant company had knowledge, or by reasonable diligence might have ascertained, that said Edwards was incompetent, inefficient, or reckless in running his engine? A. Yes. (5) Did the plaintiff's intestate know that said Jack Edwards was incompetent, inefficient, or careless in running an engine, and with such knowledge remain in the service of the defendant till he was killed? A. Yes. (6) What is plaintiff's damage? A. $9,500."

The court instructed the jury on the law and testimony bearing upon each of said issues. The plaintiff did not except before or after verdict to the instructions given or instructions refused. The plaintiff declined, after verdict, to move for a new'trial. After the rendition of the verdict, the plaintiff moved the court for judgment upon the findings of the jury on the first, second, and sixth issues especially, and upon the whole verdict in favor of the plaintiff for the sum of $9,500, and the costs of the action.

In the instruction given by the court bearing upon the second issue, and when the attention of the jury was directed to said issue, the court recapitulated all other testimony offered by the parties to show that plaintiff's intestate either did or did not contribute by his own negligence to cause the injury; but no reference was made by the court to the testimony bearing upon the question whether the plaintiff's intestate knew that Edwards was a reckless engineer, and remained in the service of the defendant company after he had such knowledge. In the instructions given to the jury bearing upon the fifth issue, however, the court stated to the jury, as counsel on both sides had stated in the argument, that the only testimony bearing upon that issue was the testimony of the wife of plaintiff's intestate as to what he said to her about Jack Edwards.

The defendant's counsel contended that there was no conflict between the findings on the second and fifth issues; and, if there was any such conflict, the findings on the fifth issue, being a special finding, would...