Ledford v. Valley River Lumber Co.

• Decision Date: 02 June 1922
• Docket Number: 593.
• Citation: 112 S.E. 421,183 N.C. 614
• Parties: LEDFORD v. VALLEY RIVER LUMBER CO.
• Court: North Carolina Supreme Court

112 S.E. 421

183 N.C. 614

LEDFORD v. VALLEY RIVER LUMBER CO.

No. 593.

Supreme Court of North Carolina

June 2, 1922

Appeal from Superior Court, Cherokee County; Brock, Judge.

Action by A. K. Ledford against the Valley River Lumber Company. From judgment for plaintiff, defendant appeals. No error.

In employee's personal injury action, an instruction stating the contentions of the parties, and charging that in fixing the amount of damages the jury should consider the earning capacity of the plaintiff prior to the injury and subsequent thereto, and to take into consideration his suffering, and decide, after a careful consideration of all the facts and circumstances, what the plaintiff was entitled to recover was not error.

Civil action to recover damages for an alleged negligent injury.

The plaintiff was injured while operating a "lay and sand belt" in the defendant's furniture factory at Murphy, N. C., on the 14th day of August, 1920. He alleges that his injury was due to the negligence of the defendant in failing to exercise ordinary care in undertaking to furnish him a reasonably safe place to work.

Upon denial of liability and issues joined, the jury returned the following verdict:

"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 his injuries, as alleged in the answer? Ans. No.

3. What damage, if any, is the plaintiff entitled to recover? Ans. $4,000."

Judgment on the verdict in favor of plaintiff, from which the defendant appealed.

M. W Bell, of Murphy, and Harkins & Van Winkle, of Ashville, for appellant.

J. H McCall and J. N. Moody, both of Murphy, for appellee.

STACY J.

It is assigned as error that the defendant's witness W. W Killian, on cross-examination and over objection, was permitted to testify that the belt which caused the plaintiff's injury was open and unprotected before the accident, and that other belts of a similar kind in the factory had been guarded and incased since the present injury. This evidence standing alone and by itself, if offered to establish negligence, would have been incompetent, as we have said in a number of decisions, notably Aiken v. Mfg. Co., 146 N.C. 324, 59 S.E. 696; Myers v. Lbr. Co., 129 N.C. 252, 39 S.E. 960; and Lowe v. Elliott, 109 N.C. 581, 14 S.E. 51. In the last case, just cited, it was held:

"In an action by an employee to recover for injuries alleged to have been received in consequence of defective machinery, used by his employer, the fact that, after the injury, the defendant substituted machinery of different material and adopted additional precautions in its use, is no evidence of negligence."

But this same witness, later, at the instance of the defendant, on redirect examination and, of course, without objection, testified to the same state of facts. This rendered the previous admission of the same evidence harmless. Tillett v. Railroad, 166 N.C. p. 520, 82 S.E. 866; Smith v. Railroad, 163 N.C. p. 146, 79 S.E. 433; Young v. Railroad, 157 N.C. 78, 72 S.E. 835; Marshall v. Telephone Co., 181 N.C. p. 411, 107 S.E. 498, and cases there cited. "The erroneous admission of evidence on direct examination is held not to be prejudicial when it appears that on cross-examination the witness was asked substantially the same question and gave substantially the same answer." Hamilton v. Lbr. Co., 160 N.C. 48, 75 S.E. 1087. To like effect are the decisions in Smith v. Moore, 149 N.C. 185, 62 S.E. 892, and Blake v. Broughton, 107 N.C. 220, 12 S.E. 127, where it was held that the admission of improper evidence was harmless when it appeared that the fact thereby sought to be shown was otherwise fully and properly established.

The defendant also excepts to the following portion of his honor's charge on the issue of damages:

"Upon that issue, if you come to consider it, you will take into consideration the injury; you will take into consideration the earning capacity of the

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