Jarrett v. High Point Trunk & Bag Co

• Decision Date: 09 April 1907
• Citation: 56 S.E. 937,144 N.C. 299
• Court: North Carolina Supreme Court
• Parties: JARRETT. v. HIGH POINT TRUNK & BAG CO.

144 N.C. 299

56 S.E. 937

JARRETT.

v.HIGH POINT TRUNK & BAG CO.

Supreme Court of North Carolina.

April 9, 1907.

1. Trial — Instructions — Sufficiency — Statement of Issues.

Where the judge instructs the jury as to how the law requires them to answer a certain issue upon a given state of facts if found for the plaintiff, he should also instruct them how to answer such issue if they should find for the defendant.

[Ed. Note.—For cases in point, see Cent, Dig. vol. 46, Trial, §§ 478, 479.]

2. New Trial — Nature and Scope — New Trial as to Part of Issues.

Before a new trial is granted on one of several issues, it should clearly appear that the matter involved is entirely distinct from the matters involved in the other issues, and that the new trial can be had without danger of complications with other matters.

[Ed. Note.—For cases in point, see Cent, Dig. vol. 37, New Trial, § 12.]

Appeal from Superior Court of Guilford; M. H. Justice, Judge.

Action by Causey Jarrett against the High Point Trunk & Bag Company. From an order setting aside the verdict and awarding a new trial, defendant appeals. Reversed.

See 55 S. E. 338.

The court submitted these issues: (1) Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Ans. Yes. (2) Did the plaintiff by his own negligence contribute to the injury complained of, as alleged in the answer? Ans. No. (3) What damage, If any, Is the plaintiff entitled to recover? Ans. $1,600.

Upon the rendition of the verdict, upon motion of plaintiff, the court set aside the verdict on the third issue, and awarded a new trial as to that issue only. The defendant excepted to such order, as well as to numerous rulings on the first and second issues, and appealed to this court.

King & Kimball, for appellant.

E. J. Justice, W. P. Bynum, Jr., and G. S. Ferguson, Jr., for appellee.

BROWN, J. No final judgment having been rendered in this case, we might well dismiss the appeal as premature, but in our discretion, and at the solicitation of both parties, we have thought best to consider the cause, but without permitting it to become an established precedent.

1. It appears from the evidence that at the time of the injury the plaintiff was about 14 years of age, and employed by the defendant in connection with its manufactory at High Point, N. C. On September 21, 1904, the plaintiff contends that he was directed to work at a ripsaw without any previous instruction or experience, and that in repairing a belt of a pulley his arm was caught In the machinery and he was seriously Injured. Upon the second issue the court Instructed the jury: "If you find that the plaintiff was commanded by the defendant to do what he was doing at the time he was hurt, and showed no greater lack of caution and prudence and foresight and realization of his danger than an ordinary boy of his age would ordinarily show under like circumstances, but acted with the degree of caution that boys of his age ordinarily show under such circumstances, then he would not be guilty of contributory negligence—then you will answer the second issue 'No.' " The defendant contends that his honor erred in failing to state in behalf of the defendant the converse of that proposition, to wit: That even if the plaintiff were ordered by the defendant to go into the basement to participate in the lacing of a belt, nevertheless, if on account of the failure to exercise that degree of care and prudence ordinarily exercised under similar circumstances by one of his years and discretion, and if on account of this failure on the part of the plaintiff he exposed himself in an unguarded moment to contact with the revolving machinery, and such failure resulted proximately in contributing to bringing about his injury, that then the jury should answer the second Issue "Yes." We think the exception to the charge for such omission is well taken. Having told the jury how the law...