Mendenhall v. North Carolina R. Co

• Decision Date: 22 November 1898
• Citation: 123 N.C. 275,31 S.E. 480
• Court: North Carolina Supreme Court
• Parties: MENDENHALL . v. NORTH CAROLINA R. CO.

31 S.E. 480

123 N.C. 275

MENDENHALL .

v.NORTH CAROLINA R. CO.

Supreme Court of North Carolina.

Nov. 22, 1898.

Death — Measure of Damages — Instructions— Error.

1. In an action for wrongful death, an instruction that no damages should be awarded unless intestate made more than a living for himself was properly refused where there was no evidence of such fact, and there was evidence to the contrary.

2. The refusal to instruct as to a point not material to the verdict is not prejudicial error.

Appeal from superior court, Davidson county; Allen, Judge.

Action by E. E. Mendenhall, administrator, against the North Carolina Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

G. F. Bason, for appellant.

B. F. Long, for appellee.

MONTGOMERY, J. The intestate of the plaintiff was so badly injured on the railroad track of the defendant company in a collision with Its engine that he died a few hours after he received the injury; and this is an action brought by the administrator to recover damages on the allegation that they were caused by the death of the intestate, and that his injury and death were caused by the negligence of the defendant. The defendant made numerous exceptions to the charge of the court below, but argued none of them in this court, nor are they alluded to in the brief filed in the case. We have, however, examined the charge carefully, and find in it no error of which the defendant company could complain. The defendant asked the court to charge the jury that, "if they should believe that the intestate made no more than a living for himself, there should be no damages awarded on account of his death." The court could not have given that instruction as asked, for the reason that there was no evidence going to support that view to the extent requested in the instruction. There was, indeed, a witness (George Kinney) who said that "the intestate's farm was a tolerably large old farm, a little run down, what he would call rather a poor farm; that he did not know a great deal about what kind of crops the intestate made, but that he made a plenty to support himself; and that, if he made anything more than a support for himself, it was not much more." That evidence tended to show that the intestate did not earn as much as the verdict of the jury declared; but certainly it did not tend to show that he made nothing more than a support for himself. There were other witnesses who testified that his net earnings were from $300 to $400 a year. The tax lists showed, for the year in which the intestate was killed, about $700 worth...