Holder v. Giant Lumber Co

• Decision Date: 27 November 1912
• Citation: 161 N.C. 177,76 S.E. 485
• Court: North Carolina Supreme Court
• Parties: HOLDER. v. GIANT LUMBER CO.

76 S.E. 485

161 N.C. 177

HOLDER.

v.GIANT LUMBER CO.

Supreme Court of North Carolina.

Nov. 27, 1912.

1. Appeal and Error (§§ 210, 237^*)—Presentation in Lower Court — Sufficiency of Evidence—Motion to Nonsuit.

The question as to whether there is sufficient evidence of negligence to justify the submission of a question to the jury can only be presented by a motion to nonsuit or by a proper prayer for instructions.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1301, 1386-1388; Dec. Dig. §§ 210, 237.*]

2. Appeal and Error (§ 230*) — Presentation in Lower Court—Request for Instructions—Time for Filing.

Prayers for instructions, not filed within the time required by the statute, will not be considered on appeal.

[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 230.*]

3. Trial (§ 257*)—Requests for Instructions—Time—Leave of Court.

Requests for special instructions will not be permitted to be filed, after argument commences, without leave of the court.

[Ed. Note.—For other cases, see Trial, Cent. Dig. §§ 1494-1497; Dec. Dig. §, 257.*]

4. Appeal and Error (§ 974*)—Review-Discretion of Lower Court —Time for Requesting Special Instructions.

The time within which special instructions should be requested is left largely to the sound discretion of the presiding judge, and this court will be slow to review his exercise of discretion unless he fails to afford counsel a reasonable time to prepare and present their requests.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 3858, 3859; Dec. Dig. § 974.*]

5. Evidence (§ 506*)—Opinion Evidence-Matters of Opinion or Conclusion.

In an action for personal injuries, hypothetical questions to an expert medical witness eliciting his opinion as to the effect of the wound upon plaintiff's knee, and as to the cause of the suffering alleged to have been endured, were not objectionable as invading the province of the jury.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 2309; Dec. Dig. § 506.*]

6. Master and Servant (§§ 101, 102*)—Duty of Master—Tools and Appliances.

It is the master's duty to furnish proper tools and appliances to a servant.

[Ed. Note.—For other cases, see Master and Servant, Cent. Dig. |§ 135. 171, 174, 178, 179, 180-184, 192; Dec. Dig. §§ 101, 102.*] Appeal from Superior Court, Wilkes County; Lyon, Judge.

Action by Filmore Holder against the Giant Lumber Company. Judgment for plaintiff, and defendant appeals. No error.

Civil action brought before his honor, Judge Lyon, superior court of Wilkes county, August term, 1912. 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.

W. W. Barber and Finley & Hendren, all of Wilkesboro, for appellant.

Hackett & Gilreath, of Wilkesboro, for appellee.

BROWN, J. [1] 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, 54 S. E. 1003; Biggs v. Gurganus, 152 N. C. 176, 67 S. E. 500.

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...