Tise v. Town of Thomasville
| Decision Date | 11 November 1909 |
| Citation | 65 S.E. 1007,151 N.C. 281 |
| Parties | TISE v. TOWN OF THOMASVILLE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Davidson County; E. B. Jones, Judge.
Action by Allie Tise against the Town of Thomasville. From a judgment for plaintiff, defendant appeals. No error.
Where under rule 27 (140 N.C. 662, 53 S.E. viii), an instruction is not asked to limit the evidence to a particular purpose, no error can be based on the failure to limit evidence that a hole in a street by which the accident was caused was filled up after the accident in corroboration of witnesses so as not to extend to an admission of negligence.
Emery E. Raper, for appellant.
Watson Buxton & Watson and McCrary & McCrary, for appellee.
Action for damages for personal injuries to plaintiff from her horse stepping into a hole in the street. The defense put on evidence that the hole had been filled up before the day the injury was alleged to have occurred. The plaintiff in reply was allowed to show that the hole was filled after the accident, and the defendant excepted.
The general rule is that the plaintiff cannot show that, after the accident, the defect which caused the injury was repaired. Lowe v. Elliott, 109 N.C. 581, 14 S.E. 51; Myers v. Lumber Co., 129 N.C. 252, 39 S.E. 960. Subsequent repairs are not an admission of previous culpable negligence, nor should the parties be deterred from making repairs for fear it should be so held. But here, the defendant having put on evidence that the hole in the roadway had been filled up before the day of the injury, 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, 64 S.E. 212. 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...
To continue reading
Request your trial