Murdock v. Carolina, Clinchfield & Ohio Railroad, 159 N.C. 131 (1912)

May 8, 1912 · Supreme Court of North Carolina
159 N.C. 131


(Filed 8 May, 1912.)

1. Evidence — Opinion—Actual Observation — Safe Appliances.

It is competent for a servant, injured in the scope of his employment by a rail, which he and other employees had been carrying, bounding upon him as they were placing it upon the ground, to testify that the rail would not have bounced if tongs had been supplied him, when he is speaking of facts within his own observation.

2. Master and Servant — Safe Appliances — “Known and Approved” —Evidence.

In order to show that a certain implement should have been furnished by a master to a servant for the performance of certain duties, the failure to furnish which is alleged as the cause of a personal injury received by the servant, it is not necessary to prove that the implement was in universal use, and several instances may be sufficient — especially, as in this case, when the implement is well known and has been in use for a long time. Orr v. Telegraph <7o„ 132 N. C., 691, cited and approved.

3. Jurors — Misconduct—Motions—New Trial — Practice—Appeal and Error.

A motion to set aside a verdict of the jury for misconduct of a juror must ordinarily be made before the trial court, unless it was not known to the complaining party until after adjournment, and then only on appeal in civil cases. It appearing in this case from the affidavits that a new trial should not .be granted, the motion is denied without discussion.

Appeal by defendant from Foushee, J., at November Term, 1911, of Mitchell.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Ciarle.

Charles JB. Greene and- Black & Wilson for plaintiff.

J. C. Biggs for defendant.

Clark, C. J.

Tbis is an action for personal injury. There was evidence that tbe plaintiff and others were engaged in carrying with their bands heavy steel rails, weighing about 850 pounds each. Under the direction of a foreman they were *132required to do tbis, causing them to walk sideways. Tbe plaintiff alleges tbat if steel tongs bad been furnished, tbe ráils could have been carried much more conveniently and when laid down would not have bounced and have injured him, tbis being tbe manner in which be was hurt.

Tbe first exception is tbat the_ plaintiff was allowed to state whether or not in placing a rail with tongs tbe rail would bounce. Tbis was not an opinion of tbe witness, but a fact wbicb be stated from bis own knowledge and experience, and tbe question was competent. Burney v. Allen, 127 N. C., 476; S. v. McDowell, 129 N. C., 523; Britt v. R. R., 148 N. C., 37.

Tbe second and third exceptions are because tbe plaintiff was. allowed to testify tbat railroad tongs were approved and in general use. Orr v. Telephone Co., 130 N. C., 627; Rushing v. R. R., 149 N. C., 160. In Bailey v. Meadows Co., 154 N. C., 72, Brown, J., says: “It is not necessary tbat tbe plaintiff should prove tbat such tongs are used on every railroad, but the fact tbat they are in use on three railroad systems is sufficient evidence to justify tbe jury in finding tbat they were in general use.” Indeed, it ought hardly to call for proof that it was negligence not to furnish an appliance so long in use and so well known. Orr v. Telegraph Co., 132 N. C., 691. Tbe exceptions for refusal to nonsuit do not need to be discussed.

Tbe defendant moved in tbis Court to set aside tbe verdict for misconduct of a juror. Tbis motion, like tbat for a new trial for newly discovered testimony, must ordinarily be made before tbe trial court, but there is an exception (though in civil' cases only, S. v. Lilliston, 141 N. C., 865), when tbe knowledge does not come to the appellant till after tbe court below has adjourned. Turner v. Davis, 132 N. C., 187, and cases there cited. It is true, those cases were where tbe new trial was asked on tbe ground of newly discovered testimony; but tie same principle must apply in a case of tbis kind. Upon reading tbe affidavits, we find tbat tbe affidavits of tbe appellant are denied and tbe declarations imputed to tbe juror are fully explained in tbe affidavit of tbe juror himself, wbicb is filed by tbe appellee. As in motions for newly discovered testimony, it would serve no purpose to discuss the evidence, but the Court *133will simply render its decision. Brown v. Mitchell, 102 N. C., 367; Herndon v. R. R., 121 N. C., 498, and eases there cited; Crenshaw v. R. R., 140 N. C., 193. The motion is denied.

No error. •