Muse v. Ford Motor Co.

• Decision Date: 01 May 1918
• Docket Number: 451.
• Citation: 95 S.E. 900,175 N.C. 466
• Parties: MUSE v. FORD MOTOR CO.
• Court: North Carolina Supreme Court

95 S.E. 900

175 N.C. 466

MUSE v. FORD MOTOR CO.

No. 451.

Supreme Court of North Carolina

May 1, 1918

Appeal from Superior Court, Mecklenburg County; Webb, Judge.

Action by John M. Muse against the Ford Motor Company. From a judgment for plaintiff, defendant appeals. No error.

That improper statement by the court of a party's contentions may be ground for exception, the matter must be called to the judge's attention in due time, so that he can have opportunity to make correction.

Action for damages. Plaintiff alleges that he was injured by defendant's negligence under the following circumstances It was the duty of the plaintiff, as an employé of the defendant, to paint automobile bodies for Ford cars. The painting is done in this way: The paint is placed in an overhead tank with a hose attached; underneath this overhead tank is what is called the drip pan, which is in the shape of a square with an open end. The automobile bodies are placed on trucks, the bodies being longer and broader than the trucks, and so project from the sides and ends of the trucks. The truck with the automobile body on it is then run into the open end of the drip pan, and the paint is sprayed on the body by use of the hose attachment to the overhead paint tank. The plaintiff averaged putting one coat of paint on about 100 bodies per day. It was the duty of the plaintiff to pull the truck with the body on it away from the drip pan, as soon as he had sprayed it with a coat of paint, to make room for spraying another body. There was a hole worn in the cement floor just in front of the drip pan, over which it was necessary to pass the trucks in carrying the automobile bodies in and out from the drip pan. Standing in the hole were two iron spikes from one to two inches high. These spikes, at the time in question, were, as plaintiff alleges serving no useful purpose, but had been negligently left standing in the roadway of the trucks. The automobile bodies which the plaintiff was required to paint weighed about 480 pounds. On or about the 27th day of July, 1917, the plaintiff took out several trucks with bodies thereon from the drip pan after spraying the same, the trucks starting without trouble from off the sheet iron upon which they were standing, but when they reached the defective place in the floor above described, and on account of the wheels of the trucks striking the hole in the floor and the iron spikes, the plaintiff received a jerk or strain which ruptured him, and caused him to have a painful hernia.

Defendant denies all allegations of negligence, including this allegation (No. 7) of the complaint:

That there was a hole in the cement floor just in front of the drip pan, over which it was necessary to pass the trucks in carrying the automobile bodies in and out from the drip pan; that this hole was about 12 or 16 inches square or larger, and from an inch to two inches deep."

Evidence was admitted, over defendant's objection, that repairs had been made, after the accident, to the cement floor of the garage, where plaintiff alleges there was a hole and a spike. There were other exceptions, which are noted in the opinion of the court by WALKER, J.

The jury returned a verdict, finding that there was negligence which proximately caused the injury, but that there was no contributory negligence, and assessed the damages. Defendant appealed from the judgment thereon.

Chase Brenizer, of Charlotte, for appellant.

Stewart & McRae, of Charlotte, for appellee.

WALKER J. (after stating the facts as above).

We have not set out the evidence, charge, and objections of the defendant extensively, but have stated so much of them as will be necessary for a consideration of the assignments of error.

First. The evidence as to repairs was competent in one view of the case. It comes within the exception to the general rule that such evidence is not admissible to show negligence. It seems to us that Tise v. Thomasville, 151 N.C. 281, 65 S.E. 1007, is directly in point, as the plaintiff, in that case, was permitted to show that a hole was filled up, as proof of the condition existing at the time of the injury, and to contradict or corroborate witnesses. We said in Pearson v. Clay Co., 162 N.C. 224, 225, 78 S.E. 73:

"To show that a hole into which he had fallen, as he had testified, had been filled up after the occurrence not to prove negligence, but to contradict defendant's assertion that the hole was not there at the time of the alleged fall, it having been filled up."

In Railroad Co. v. Hawthorne, 144 U.S. 202, 12 S.Ct. 591, 36 L.Ed. 405, it was said, in discussing the rule:

"Upon this question there has been some difference of opinion in the courts of the several states. But it is now settled, upon much consideration, by the decisions of the highest courts of most of the states in which the question has arisen, that the evidence is incompetent, because the taking of such precautions against the future is not to be construed as an admission of responsibility for the past, has no legitimate tendency to prove that the defendant has been negligent before the accident happened, and is calculated to distract the minds of the jury from the real issue and to create a prejudice against the defendant," citing many cases, and among others Morse v. Railroad, 30 Minn. 465, 16 N.W. 358; Corcoran v. Peekskill, 108 N.Y. 151, 15 N.E. 309; Railroad v. Clem, 123 Ind. 15, 23 N.E. 965, 7 L. R. A. 588, 18 Am. St. Rep. 303.

Part of the above quotation was taken from the opinion of Judge Mitchell, delivered by him in Morse v. Railroad, supra. This court adopted the same rule in Lowe v. Elliott, 109 N.C. 581, 14 S.E. 51, and approved what is above quoted from the opinion of Mitchell, J., in Morse v. Railroad, citing three other cases--Dougan v. Transportation Co., 56 N.Y. 1, Sewell v. Cohoes, 11 Hun (N. Y.) 626, and Baird v. Daly, 68 N.Y. 547. The case of Lowe v. Elliott was approved in Myers v. Lumber Co., 129 N.C. 252, 39 S.E. 960; Aiken v. Manufacturing Co., 146 N.C. 324, 59 S.E. 696; Tise v. Thomasville, supra; Boggs v. Mining Co., 162 N.C. 393, 78 S.E. 274. See Lockhart on Evidence, § 168. But there are exceptions to this rule, some of which, with the reason for the rule, are stated in 29 Cyc. 616, 617, 618, and in the authorities which we have already cited. In this case the defendant denied that the hole and spike were of the character described by the defendant, and this evidence tended to corroborate the plaintiff and his witnesses. This kind of testimony should be carefully explained to the jury by the court, and they should be instructed not to consider it as evidence of negligence, but should confine it strictly to the purpose for which it is admitted. But if the judge fails to do so, it is not reversible error, unless he was asked for a special instruction thus restricting it. Rule 27 (164 N.C. 548, 81 S.E. xi); Tise v. Thomasville, supra, where it is said (151 N.C. 282, 65 S.E. 1007):

"It was competent to show that the repairs were made afterwards--not that the repairs were evidence tending to prove negligence, but simply to prove their date to contradict the defendant's witnesses. Westfeldt v. Adams, 135 N.C. 601, 47 S.E. 816. The evidence was also competent in corroboration of the plaintiff's evidence of the existence of the hole at that time and place. The defendant contends that, in this view, the court should have instructed the jury that this evidence was admitted only in corroboration. But rule 27 (140 N.C. 662 [53 S.E. viii]) provides that this is not error, 'unless the appellant asks, at the time of admission, that it be restricted.' Hill v. Bean, 150 N.C. 437 . Indeed, it does not appear that the judge did not give a proper instruction. The presumption is that he did, as there is no exception that he did not. State v. Powell, 106 N.C. 638 ; State v. Brabham, 108 N.C. 796 ; Byrd v. Hudson, 113 N.C. 211 ."

Second. The testimony of the plaintiff as to the cause of his injury was harmless. He stated that he felt the severe pain immediately after he had received the injury. He had no hernia before, and there was scarcely any evidence to show that the hernia was not caused by the jerking of his body by the truck; but, on the contrary, it all tended, strongly and almost conclusively, to show that it was so caused.

Third. The exhibition of a spike, not the one which was in the hole was likewise harmless. It was offered, not to identify it as the one which caused, or helped to cause, the injury, but as being like it in size and form, for the purpose of giving the jury some light upon the question, as to whether the spike was at all instrumental in injuring the plaintiff (like a map or diagram is used in some cases), and as evidence it was merely...