Isley v. Va. Bridge Ft

• Court: North Carolina Supreme Court
• Writing for the Court: BROWN
• Citation: Isley v. Va. Bridge Ft, 55 S.E. 416, 143 N.C. 51 (N.C. 1906)
• Decision Date: 13 November 1906
• Parties: ISLEY . v. VIRGINIA BRIDGE ft; IRON CO.

55 S.E. 416

143 N.C. 51

ISLEY .

v.VIRGINIA BRIDGE ft; IRON CO.

Supreme Court of North Carolina.

Nov. 13, 1906.

1. Trial — Instructions — Requests — Instructions Already Given.

In an action for injuries to an employe, where the negligence charged was that a chain used in moving heavy irons had not been occasionally annealed, in consequence of which it had become crystallized, causing it to break and injure plaintiff, and the evidence that the chain had become crystallized was conflicting, defendand was entitled to a requested instruction directing a finding for it on the issue of negligence as alleged, if the jury found the chain was not crystallized, and it was not sufficient that the instruction was inferentially given in the charge.

[Ed. Note.—For cases in point, see vol. 46, Cent. Dig. Trial, §§ 651, 478.]

2. Trial—Setting Aside Verdict for Excessiveness.

The superior court judges cannot reduce a verdict without the consent of the party in whose favor it was rendered, but may set it aside, if injustice has been done.

Appeal from Superior Court, Alamauce County; Ferguson, Judge. Action by Warren W. Isley against the

Virginia Bridge & Iron Company. The court submitted the following issues: "(1) Was the plaintiff injured by the negligence of the defendant as alleged? (2) What damage has the plaintiff sustained thereby?" From a judgment for plaintiff, both parties appeal. Reversed.

See 53 S. E. 841, 141 N. C. 221.

J. T. Morehead and W. H. Carroll, for plaintiff.

Brooks & Thompson and Parker & Parker, for defendant.

BROWN, J. This cause was tried upon the issues submitted upon the first trial, and we refer to the former report for the facts. On the second trial the defendant requested the court to charge the jury: "If you find from the evidence that the link of the chain in evidence was not crystallized, then I charge you to answer the first issue, 'No.' " The court declined to give this special instruction, and defendant excepted.

The only theory of negligence presented by the plaintiff was that the chain suspended from the trolley and used in moving heavy pieces of iron had not been occasionally annealed, in consequence of which it had become crystallized, which caused it to break and drop the iron upon plaintiff's leg. The testimony of Albright and Turrentine, plaintiff's witnesses, tends to prove that the use of chains in lifting heavy weights tends to crystallize the links, or some of them; that the method used to prevent this is by annealing the metal: and that this chain had become crystallized. There is no other evidence of negligence, and plaintiff does not undertake to account for the breaking of the chain upon any other theory. The defendant offered evidence tending to prove that the broken link had not become crystallized, and that the occurrence was an accident, and was not...