Tbe first assignment of error is to tbe admission of certain opinion evidence, and tbe last is to tbe court’s refusal to set aside tbe verdict and to tbe signing of tbe judgment as set forth in tbe record. All of tbe others are to tbe charge.
Tbe first assignment of error, which is to tbe court’s refusal to strike out an opinion expressed by a certain witness as to what caused a given trouble in tbe operation of tbe mill becomes immaterial on tbis appeal, since tbe evidence relates to tbe third issue and tbe answering of tbat issue was rendered unnecessary by tbe answers to tbe first and second issues.
We have examined with care tbe many objections to tbe charge of tbe court, but upon reading tbe charge as a whole we are left with tbe impression tbat it was complete and fair to tbe defendant, and in accord with tbe theory upon which tbe case was tried. It is said in Murphy v. Coach Company, 200 N. C., 92, “In a long charge, we do not think technical matters contended as errors, fished out of tbe charge, can be held as reversible or prejudicial error, when on tbe whole tbe charge is correct.” And it is further said in Leggett v. R. R., 173 N. C., 698, “Tbe charge to a jury must be considered as a whole in tbe same connected way in which it was given, and upon tbe presumption tbat tbe jury did not overlook any portion of it. If, when so construed, it presents tbe law fairly and correctly, it will afford no ground for reversing tbe judgment, though some of tbe expressions, when standing alone, might be regarded as erroneous.”
Tbe charge in tbis case, when read in tbe light of tbe issues, which were tendered by tbe appellant, fairly presents tbe contentions of tbe parties and correctly applies tbe principles of law under tbe theory upon which tbis case was tried, and if tbe defendant’s contentions were not fully set forth at tbat time, or were incorrectly stated, it was incumbent upon him to have requested tbe court to present more specific and additional or different contentions. Proctor v. Fertilizer Company, 189 *236N. C., 243. A party is not permitted to try bis case in the lower court upon one theory and then ask the Supreme Court to hear it on another and different theory. Walker v. Burt, 182 N. C., 325, and cases there cited.
This was a case for trial by jury. The evidence was conflicting and a finding of the facts was necessary to adjudicate the differences between the parties. Under a charge free from prejudicial error, the jury has answered the issues, tendered by the defendant, in favor of the plaintiff, and, therefore, we can see no reason for disturbing the judgment based upon the verdict.
No error.