Jenkins v. Sullivan
| Decision Date | 01 December 1915 |
| Docket Number | (No. 446.) |
| Citation | 170 N.C. 269,87 S.E. 47 |
| Court | North Carolina Supreme Court |
| Parties | JENKINS. v. SULLIVAN, LONG & HAGERTY et al. |
Appeal from Superior Court, Mecklenburg County; Lane, Judge.
Action by Isaiah Jenkins against W. J. Long and John T. Hagerty, trading as Sullivan, Long & Hagerty, and another. From a judgment for plaintiff, defendants appeal. No error.
This is an action to recover damages on account of injuries alleged to have been sustained in the construction of a ditch or trench by reason of the negligence of the defendants.
The plaintiff was employed by Sullivan, Long & Hagerty, partners, who are defendants, who were under contract with the city of Charlotte, also a defendant, in the construction of sewer ditches. The contract between the defendants is not material, as no question is raised of the relation between the defendants, nor is it contended that the doctrine of independent contractor arises. The negligence alleged is that the soil through which the ditch or trench was being dug was rotten and unsafe, and that the defendants failed to leave bulkheads in the ditch and failed to brace it. The plaintiff was injured by the caving in of the ditch. The ditch was about 8 feet deep and 2 1/2 feet wide at the time of the injury.
The plaintiff introduced evidence tending to sustain the allegations of negligence, and the plaintiff introduced evidence to the contrary. There was evidence on each side as to the custom of leaving bulkheads and of bracing ditches of the depth and character of the one where the plaintiff was working. There are several exceptions to the evidence, and one exception to the charge, which will be noted in the opinion.
There was a verdict and judgment for the plaintiff, and the defendants excepted and appealed.
Brenizer, Black & Taylor and Cansler & Cansler, all of Charlotte, for appellants.
McNinch & Justice, of Charlotte, for appellee.
ALLEN, J. [1] 1. Robert Moser, witness for the plaintiff, was asked:
"What is the custom with reference to bracing the sides of a ditch or leaving bulkheads where it appeared to be dangerous either from the depth of the ditch or the character of the earth."
And he replied:
The defendants excepted.
The answer to this question, if otherwise objectionable, is harmless, because there is nothing in it which a man of ordinary intelligence would not know without testimony. It amounts to saying that in a shallow ditch you do not need bracing, but, if the ditch is deep and through ground that is liable to cave, you do.
Again, this witness on cross-examination answered the question which was asked him on direct examination, and which is ob-jected to more positively in favor of the plaintiff. He said:
2. Mr. Wilson was the superintendent in charge of the construction of the sewers; and a witness for the plaintiff was asked:
"Did you say anything to Mr. Wilson about bracing that ditch at any time that day?"
And he replied:
"I told him when he was up there when I got pretty low down in the ground that it looked pretty dangerous, and I thought there ought to be some bulkheads left."
The defendants excepted. This conversation occurred on the day of the injury and prior thereto, and it...
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Hunt v. Wooten
...v. Charles Stores Co., Inc., 209 N.C. 591, 184 S.E. 496; Rierson v. Carolina Steel & Iron Co., 184 N.C. 363, 114 S.E. 467; Jenkins v. Long, 170 N.C. 269, 87 S.E. 47; Morgan v. Royal Fraternal Association, 170 N.C. 75, 86 S.E. 975; In re Rawlings' Will, 170 N.C. 58, 86 S.E. 794; Lupton v. So......
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State v. Davis
...hardly have expected him to say that he had contradicted himself, or, what is more, that he was prejudiced by the ruling. Jenkins v. Long, 170 N. C. 269, 87 S. E. 47, seems to be directly applicable, and shows that there was no reversible error because no prejudice, and there are other case......
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Fidelity Bank v. Wysong & Miles Co., Inc.
...Wysong cannot be sustained for several reasons, one of which is that it does not appear what answer he would have given. Jenkins v. Long, 170 N.C. 269, 87 S.E. 47; Rawls v. Railroad Co., 172 N.C. 211, 90 S.E. 116; Smith v. Commissioners, 176 N.C. 466, 97 S.E. 378. He might have answered, "N......
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State v. Davis
...hardly have expected him to say that he had contradicted himself, or, what is more, that he was prejudiced by the ruling. Jenkins v. Long, 170 N.C. 269, 87 S.E. 47, seems be directly applicable, and shows that there was no reversible error because no prejudice, and there are other cases to ......