Witsell v. West Asheville & S.S. Ry. Co.
| Decision Date | 30 April 1897 |
| Citation | 27 S.E. 125,120 N.C. 557 |
| Parties | WITSELL v. WEST ASHEVILLE & S. S. RY. CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Buncombe county; Bryan, Judge.
Action by E. F. Witsell against the West Asheville & Sulphur Springs Railway Company for personal injuries. Judgment for plaintiff, and defendant appeals. Reversed.
Civil action tried before Bryan, J., and a jury, at December term 1896, of Buncombe superior court, for damages sustained by the plaintiff as a passenger on the street railway, which it was alleged negligently permitted its car to run down hill at a rapid speed and without proper appliances, whereby the car was derailed and the plaintiff injured. The usual issues as to negligence, contributory negligence, and amount of damages were submitted. Verdict and judgment for the plaintiff. Appeal by the defendant, who assigned the following errors (1) To the admission by the court of the testimony of J. D Davis, to which objection and exception were made at the trial; (2) to the refusal of the court to give the first and fourth special instructions requested by the defendant; (3) to the modification or qualification of the second instruction prayed for by the defendant; (4) to the giving of the special instructions prayed for by the plaintiff, from 1 to 14, both inclusive; (5) to the judgment of the court.
An exception to the giving of the special instructions "from one to fourteen, both inclusive," is a sufficient specific exception to each of the instructions.
Merrimon & Merrimon and Davidson & Jones, for appellant.
L. M Bourne and T. H. Cobb, for appellee.
The statements and declarations of the motorman, made to plaintiff just preceding the accident, as to the condition of the track, as to his not having sand, and the car being late and overloaded, and the rapidity of the speed, were competent as part of the res gestæ, and also as fixing the company with knowledge of facts requiring a greater degree of care and prudence than ordinary. 4 Thomp. Corp. §§ 4913, 4914; Mor. Priv. Corp. § 540a. Each of the four special instructions asked by the defendant concludes by asking the court to instruct the jury that the "plaintiff cannot recover." As the jury now respond to issues, and do not find a general verdict, it was not error to refuse these prayers, which would not aid the jury to answer the issues, and might confuse them. Bottoms v. Railroad Co., 109 N.C. 72, 13 S.E. 738; Farrell v. Railroad Co., 102 N.C. 390, 9 S.E. 302; McDonald v. Carson, 94 N.C. 497. If a prayer is in part erroneous, the court may decline it. The judge is not called upon to sift out the sound part and give it. State v. Melton (at this term) 26 S.E. 933. The plaintiff having asked 14 instructions, each one numbered, and all of which were given, the defendant excepted "to the giving of the special instructions prayed for by plaintiffs, from one to fourteen, both inclusive." We cannot concur with the defendant's counsel that this is objectionable as a "broadside exception." It is a specific exception to each and every one of the 14 special instructions. It puts the judge on notice to send up the evidence applicable to each, and the opposite party knows that each of the 14 propositions of law contained in those prayers will be challenged here. When an exception is made "to the charge as given," this, by repeated decisions of this court, is invalid, except when the charge contains only one proposition of law. When it contains more than one, the appellant must point out each objectionable proposition of law in the charge by an exception embracing it, and the statute gives him 10 days after the trial to scrutinize the charge and make his exceptions. The record, as has been repeatedly said, should not be incumbered with any part of the charge or of the evidence which is not required to point out or throw light upon the matters excepted to. To permit a broadside exception "to the charge as given" would require all the evidence and all the charge in every case to be sent up, with great and needless addition to the costs, and would be unjust to the appellee, for it would give him no knowledge of what propositions of law would be called in question upon the appeal, so that his counsel might prepare himself thereon. But the Code does not require refinements, and when prayers for instruction are asked and given, and the opposite party excepts, giving the numbers of the instructions excepted to, this is specific information to the appellee, which would not be fuller if a separate exception was made seriatim to each instruction given.
The third instruction given at request of plaintiff: "It is the duty of the defendant to provide its cars with all known and approved machinery necessary to protect its passengers from injury,"--is too broad and exacting. Many appliances and devices "necessary to protect passengers from injury" are not yet invented, and it is little short of requiring the use of them that the company shall adopt all such when invented, as soon as "known and approved." Many inventions are "known and approved" long before they come into general use and to thus require common carriers to adopt...
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