Dobson & Whitley v. Southern Ry. Co.

• Decision Date: 10 June 1903
• Citation: 44 S.E. 593,132 N.C. 900
• Parties: DOBSON & WHITLEY v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

44 S.E. 593

132 N.C. 900

DOBSON & WHITLEY v. SOUTHERN RY. CO.

Supreme Court of North Carolina

June 10, 1903

Appeal from Superior Court, Henderson County; E. B. Jones, Judge.

Action by Dobson & Whitley against the Southern Railway Company. From a judgment for plaintiffs, defendant appeals. Reversed.

In an action against a railroad company for damages caused by fire plaintiff testified that the property destroyed was worth a specified sum, which included the original cost, with freight charges added. Defendant introduced as a witness the tax lister for the year in which the fire occurred, who testified that plaintiff stated that a much lower valuation was too high for purposes of taxation. Held, that instructions that the jury had the uncontradicted evidence of plaintiff as to the value of the property destroyed was erroneous, as withdrawing from the consideration of the jury the testimony of the tax lister.

S. J Ervin, P.J. Sinclair, and A. B. Andrews, Jr., for appellant.

Justice & Pless and Busbee & Busbee, for appellees.

WALKER J.

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 plaintiff 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 plaintiffs 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 plaintiffs' 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 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. Objections 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. Byrd, 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...