Tbe trial judge properly submitted the cause to the jury. He stated and arrayed the contentions of the parties with clearness and impartiality and correctly stated the principles of law applicable to the various phases of the evidence.
The defendant offered one of the guards as a witness, who was present at the time of the injury, and was asked what was the condition of the hammer plaintiff was using. He replied: “I would say it was in good condition.”
The plaintiff insists that the evidence was incompetent and should have been excluded by application of the rule heretofore announced in Marshall v. Telephone Co., 181 N. C., 292, 106 S. E., 818. However, the ruling of the trial judge is sustained. The identical point was considered in Bane v. R. R., 171 N. C., 328, 88 S. E., 477. The Court said: “The instantaneous conclusions of the mind as to the appearance, condition, or mental or physical state of persons, animals, and things, derived from observation of a variety of facts presented to the senses at one and the same time, are, legally speaking, matters of fact, and are admissible in evidence,” etc. See, also, McCord v. Harrison-Wright Co., 198 N. C., 742, 153 S. E., 406.
The plaintiff also attempted to offer evidence that other persons had suffered injuries “while working in the rock quarry belonging to the city of Durham, while breaking rock,” in the same manner as the plaintiff. The trial judge properly excluded the evidence for the reason that the evidence did not disclose “the substantial identity of circumstances or proximity of time which the law contemplates.” Etheridge v. R. R., 206 N. C., 657, 175 S. E., 124.
Plaintiff further insisted that it was error for the trial judge to decline to state his contentions to the effect that he was being worked in violation of the Constitution and laws upon the theory that C. S., 7758, authorizes convicts to be worked on the roads or streets, and, therefore, excludes work in quarries. Even if it be conceded that such contention is sound, there were no allegations in the pleadings raising the question, and hence the trial judge ruled correctly in declining to submit such contention.
A careful examination of all the exceptions does not disclose to the Court any error of law.
Affirmed.