Kennedy v. Western Union Telegraph Co., 201 N.C. 756 (1931)

Dec. 9, 1931 · Supreme Court of North Carolina

201 N.C. 756

J. L. KENNEDY v. WESTERN UNION TELEGRAPH COMPANY.

(Filed 9 December, 1931.)

1. Master and Servant C lb — Conflicting evidence on question of master’s liability held properly submitted to the jury.

The lineman of a telegraph company in pursuance of his duty had climbed to the top of a pole to fix the wires, and the pole fell causing personal injuries to him. His evidence tended to show that he was subject to the order of the defendant’s maintenance foreman whose duty it was to have inspected the pole, that the pole was rotten under the ground which could not have been discovered by the plaintiff in the exercise of ordinary care and which should have been discovered by the maintenance foreman in the exercise of his duty of inspection. The defendant pleaded contributory negligence and its evidence tended to show that the plaintiff was in charge of the work and was under duty to inspect the pole and should have discovered and avoided the danger. Held: the conflicting evidence was properly submitted to the jury on the question of the defendant’s failure to exercise due care to provide the plaintiff with a reasonably safe place to work.

2. Trial D a — Where plaintiff gives conflicting testimony it affects his credibility as witness but does not entitle defendant to nonsuit.

Apparent contradictions or inconsistencies in the evidence of a plaintiff testifying in his own behalf in a civil action will not entitle the defendant to a judgment as in case of nonsuit or to a directed verdict, when he has also testified to matters tending to sustain his action, such contradictions going only to his credibility as a witness.

3. Trial E e — Where instructions requested are substantially given in the charge refusal to give instructions requested is not error.

' The refusal of the trial judge to give a prayer for special instructions will not be held for error when the instructions requested are substantially given in the general charge.

4. Trial E f — incorrect statement of contentions of party must be called to attention of trial court in apt time.

An incorrect statement in the charge of the trial judge to the jury as to the contentions of a party will not be held for error unless the complaining party has called the matter to the attention of the judge in time to afford him an opportunity to correct the misstatement.

5. Trial E b: E g — Held: cons tilling charge as a whole the trial court did not express opinion as to weight and credibility of evidence.

Where the trial court charges the jury that if they should find the facts to be as contended by the defendant, that the plaintiff could not recover, and in the next succeeding paragraph states the converse of the proposition, an exception by the defendant to the latter portion of the charge will not be held for error as an expression of opinion by the court on the weight and credibility of the evidence, the charge being correct when construed contextually as a whole.

6. Trial E e — Where court correctly charges the law applicable a party desiring greater elaboration should tender request therefor.

Where the trial court substantially instructs the jury upon the issue of the measure of damages, the objecting party desiring a more elaborate statement of the law should make a special request therefor in order to avail himself of an exception on appeal.

Appeal by defendant from Finley, J., at April Term, 1931, of Guil-ford.

No error.

In bis complaint tbe plaintiff alleged tbat on 10 April, 1929, be was in tbe service of tbe defendant as a lineman, doing work in Dinber, S. C., and was required to climb one of tbe defendant’s poles for tbe purpose of disconnecting certain wires; tbat be braced tbe telegraph pole with four pike poles; tbat while be was in tbe act of releasing tbe wires, or after be bad released them, tbe main pole and one of tbe pike poles broke; and tbat be was thrown to tbe ground and injured. Tbe defendant denied all allegations of negligence and pleaded tbe plaintiff’s contributory negligence in bar of bis recovery. Tbe issues of negligence, contributory negligence, and damages were answered in favor of tbe plaintiff and tbe defendant excepted and appealed.

Tbe principal allegation of negligence is tbe defendant’s failure to use ordinary care to provide for tbe plaintiff a safe pole and safe pike poles.

Tbe defendant contended tbat tbe plaintiff bad charge of tbe work, tbat it was bis duty to inspect tbe poles, and tbat if they were defective be should have discovered tbe defect and avoided tbe danger. It was tbe plaintiff’s contention tbat be was not tbe supervisor of tbe work and that be was subject to tbe orders of a superior officer of tbe defendant.

H. L. Koonts and Walser & Oasey for plaintiff.

Francis B. Siarlc, King <& King• and Sapp & Sapp for defendant.

Adams, J.

Tbe first and second assignments of error are addressed to tbe question whether tbe defendant is entitled to a judgment of non-suit, and tbe seventh, eighth, and ninth, to tbe question whether upon all tbe evidence tbe court should have instructed tbe jury to answer tbe first issue against tbe plaintiff, tbe defendant insisting tbat tbe plaintiff bad supervision of tbe work and tbat it was bis duty to take such reasonable and available precaution for bis own safety as tbe dangerous character of tbe service required. Tbe defendant’s position conforms to tbe established rule. Hicks v. Mfg. Co., 138 N. C., 319; Covington v. Furniture Co., ibid., 374; Mace v. Mineral Co., 169 N. C., 143; Heaton v. Iron Co., 191 N. C., 835. But tbe evidence on this point is not all one way. There is testimony tending to support tbe defendant’s contention; there is other testimony to tbe effect tbat tbe plaintiff was subject to tbe orders of tbe maintenance foreman. This conflict in tbe testimony imposed upon tbe court tbe duty of submitting tbe question to tbe jury. If tbe plaintiff’s contention is correct, as tbe jury decided, tbe plaintiff bad a right to assume tbat tbe defendant bad discharged its duty of inspection unless tbe defect in tbe poles was so apparent tbat tbe plaintiff should have discovered it by exercising ordinary care. Chesson v. Lumber Co., 118 N. C., 59; Horne v. Power Co., 141 N. C., 50. Tbe plaintiff testified tbat tbe pole was “rotten inside and under tbe ground”; and upon this be rests tbe contention tbat tbe defect was not discoverable by him but should have been discovered by tbe defendant in performing tbe duty of inspection.

Error would have been committed if tbe court bad directed a verdict for tbe defendant on tbe second issue. Whether tbe plaintiff exercised proper care was a matter for tbe jury. He testified tbat be examined tbe pole before be went up on it; tbat be bad bad ten years experience and knew bow to examine it; and tbat after tbe examination it seemed to be safe. Any apparent contradiction or inconsistency in bis testimony did not destroy its competency; it was merely a circumstance tending to affect bis credibility as a witness.

Tbe third, fourth, and fifth assignments cannot be sustained for tbe reason tbat in effect they eliminate consideration of tbe defendant’s alleged negligence and absolve tbe defendant in any view of tbe evidence from tbe duty of inspection. Tbe sixth relates to a prayer for instruction, the substance of which, or so much of it as the defendant was entitled to, is embraced in the charge.

The subject of the tenth assignment is the statement of a mere contention of the defendant, which if objectionable should have been called to the attention of the court at the time so that it might be corrected. S. v. Ashburn, 187 N. C., 717; Snyder v. Asheboro, 182 N. C., 708.

The instruction referred to in the eleventh exception if taken as a detached portion of the charge is incomplete; but when considered in connection with other portions, the charge being construed in its entirety, the paragraph excepted to does not constitute valid ground for a new trial. After giving specific instructions on the first issue his Honor told the jury that if they should find that the plaintiff had charge of the work and did not exercise reasonable care and that the injury was the result of his negligence he would not be entitled to recover. The ensuing paragraph was a statement of the converse of this proposition and must be construed in its relation to the whole charge.

The instruction as to damages is in substantial compliance with the law. Ruffin v. R. R., 142 N. C., 120; Wallace v. R. R., 104 N. C., 442. If the defendant desired a more elaborate statement of the rule in reference to the present value of the plaintiff’s diminished earning-capacity he should have requested an instruction to this effect. Murphy v. Lumber Co., 186 N. C., 746; Hill v. R. R., 180 N. C., 490, 493. We find

No error.