Tilghman v. Seaboard Air Line R. Co.
| Decision Date | 05 November 1914 |
| Docket Number | 255. |
| Citation | 83 S.E. 315,167 N.C. 163 |
| Parties | TILGHMAN v. SEABOARD AIR LINE R. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wake County; Allen, Judge.
Action by W. B. Tilghman against the Seaboard Air Line Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Exceptions 51 1/2 and 52 were to the permission given to amend the complaint to conform to the proof.
Murray Allen, of Raleigh, for appellant.
R. N Simms and Douglass & Douglass, all of Raleigh, for appellee.
A large number of the assignments of error have been abandoned by failure of the appellant to make any argument or reference thereto in its brief. Rule 34 (66 S.E. ix). This is as it should be. During the progress of the cause counsel, out of the abundance of caution, necessarily take a great many exceptions which on fuller examination cannot be sustained and in such case they should neither clog the brief nor divert the attention of the court from the vital errors alleged therein. One vital error is sufficient to secure a new trial, and there is no necessity of urging a large number of exceptions on the attention of the court when it will be more effective to concentrate the argument on those exceptions in which the counsel have the most confidence.
The following exceptions are thus abandoned: 1, 4, 5, 7, 8, 19, 20, 21, 22, 23, 24, 28, 30, 31, 32, 34, 35, 38, 39, 40, 41, 42, 43, 47, 48, 49, 58, 59, 60, 65, 72, 74, 75, 86, 87, 91, and 94.
Exceptions 3, 6, 9, 10, 11, and 12 were to evidence relating to the "block system," and the judge expressly withdrew the same and instructed the jury not to consider it, after he had made an order allowing the plaintiff to strike out the allegations in the complaint relating to the block system and this had been done.
Exceptions 13 and 14 cannot be sustained, for it was competent to read the depositions, as the witness was at the time absent in Virginia.
Exceptions 15, 16, 18, 26, 27, and 29 to the admission of evidence are overruled. In neither of them was there an exception to the answer, and as to the last five exceptions the witness was admitted as an expert.
Exception 25 was because the court in its discretion permitted the witness to be examined orally though his deposition had been previously read. If the witness had testified orally, it would have been in the discretion of the judge to have permitted him to be recalled, and the same is true here.
Exception 33 was to a pertinent question to the expert witness in opposition to the testimony of the expert witnesses of the defendant. Nor do we find any sound reasons in favor of exceptions 36 and 37. The witness was an expert. Exception 44 is to a question asked on recross-examination, and permission to do so was entirely in the discretion of the court.
Exception 45 was to the plaintiff's inquiry of the witness Bryant, as to the paper introduced in evidence by the defendant purporting to be the train orders governing the plaintiff's action. The plaintiff contended that such paper was not geniune. This was not a question of an expert on handwriting, but merely required the witness who had seen and inspected the original to state whether or not this alleged carbon copy looked like the original.
Exception 46 is because the plaintiff, who had been fully examined whether he had any doubt about the correct reading of the writing, was permitted to say that the paper writing looks nearer like the one he saw, and that at the time of reading it he had no doubt that it read that the train should pass at "Grandy."
Exception 50 was to the three issues submitted, which were the usual issues of negligence, contributory negligence, and damages which have been so often approved by the court.
Exception 51 was to the refusal to submit the 10 issues tendered by the defendant. The first 6 related to the assumption of risk, which had been withdrawn from the complaint and excluded from the consideration of the jury.
Issues 7 and 8 were substantially the same as 1 and 2, which were submitted.
The ninth and tenth issues tendered are covered by the third issue which was submitted.
Exceptions 51 1/2 and 52 are to the permission accorded the plaintiff to amend his complaint. This was discretionary. Revisal 507.
Exception 53 is the same as 51 1/2.
Exceptions 54, 55, 56, and 57 were to instructions requested as to the block system, telephone system, and the names of the stations, which were properly refused because the court had stricken out those matters from the complaint and withdrawn the evidence relating thereto from the consideration of the jury. Exception 61 to the refusal of an instruction that upon plaintiff's own evidence his failure to stop at Granite was negligence on his part cannot be sustained.
As to exceptions 62, 63, 64, 67, and 68, the defendant in his brief practically concedes that they cannot be sustained. As to exception 66 the instruction asked could not have been given after the amendment of the complaint.
Exceptions 69, 70, and 71 cannot be sustained because they related to instructions upon issues 2, 4, and 6, tendered by the defendant, which were not submitted to the jury because they related to the assumption of risk which had been stricken out of the case.
The prayer referred to in...
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