Cogdell v. Wilmington & W.R. Co.

• Decision Date: 10 June 1903
• Citation: 44 S.E. 618,132 N.C. 852
• Parties: COGDELL v. WILMINGTON & W. R. CO.
• Court: North Carolina Supreme Court

44 S.E. 618

132 N.C. 852

COGDELL v. WILMINGTON & W. R. CO.

Supreme Court of North Carolina

June 10, 1903

Petition for rehearing. Petition allowed.

For former opinion, see 41 S.E. 541.

WALKER J.

This case is before us the third time, upon a petition to rehear and revise the former judgment of this court, rendered at February term, 1902, affirming the judgment of the court below, which was adverse to the plaintiff. The case is reported in 124 N.C. 302, 32 S.E. 706, and 130 N.C. 313, 41 S.E. 541.

We think it is necessary to refer to only three of the exceptions taken by the plaintiff at the trial:

The plaintiff proposed to ask a witness the following question "If this plank on the apron had been sound, and not cedar-hearted or rotten, could a man of Cogdell's weight and size have stood on it with safety and thrown off the lump coal, or fallen on it from the top of the car, without its breaking under him?" Defendant objected to this question, the objection was sustained, and plaintiff excepted. We do not think that this matter is the subject of expert or opinion evidence. The witness could well have described the plank and its condition, and the jury would then have been just as competent to form an opinion as to its strength and safety as the witness. The conclusion reached by the court at the last term upon this question was correct for the reasons stated in the opinion of the court.

The plaintiff in apt time requested the court to charge the jury that "the law presumes that a person found dead and killed by alleged negligence of another has exercised due care himself." The court refused to give this instruction, and charged the jury, in its stead, that "an inference arises from the instinct of self-preservation that the person killed has exercised due care himself." We are of the opinion that the court erred in refusing to give the instruction as prayed for by the plaintiff, and in substituting therefor the instruction which it did give with reference to this matter. It is well settled that the court is not required to charge the jury in the very words of a prayer for instruction, but if the prayer contains a correct statement of the law, as applicable to the facts of the case, the court must give it, at least substantially, and cannot substitute an instruction of its own for it, if thereby the instruction as requested to be given is weakened or diminished in its force. While the court is not required to use the words of the prayer, it must not change the substance of it in a way calculated to impair its force. The law does not regard the form, but even the form should not be so modified as to impart to the instruction less weight than it would have with the jury if given as it was submitted to the court, provided always that the instruction, as asked, is in itself correct with reference to the case presented by the proof. In the case now under consideration the court was requested to charge that there was a presumption that the deceased had exercised care, which the court refused to give, but charged the jury that there was an inference that due care was exercised. It is undoubtedly true that the law raises a presumption of care and the party against...