Grant v. Bartlett, 230 N.C. 658 (1949)

Sept. 28, 1949 · Supreme Court of North Carolina

230 N.C. 658

OSCAR GRANT v. JAMES E. BARTLETT.

(Filed 28 September, 1949.)

1. Negligence § 19b (1), 19c — Evidence held for jury in action for negligent injury inflicted with an axe.

Plaintiff and defendant were engaged in clearing land, and plaintiff’s hand was injured when struck by the axe wielded by defendant. Plaintiff’s evidence was to the effect that he was pulling ivy off a stump and that as his hand came back with the pull, defendant carelessly and without noting plaintiff’s proximity, struck down with the axe causing the injury. Defendant’s evidence was to the effect that plaintiff suddenly stumbled backward and downward and fell under the axe as it was descending, too late for defendant to arrest the stroke. Held,: Defendant’s motion to nonsuit on the ground of absence of evidence of actionable negligence and on the ground of contributory negligence was properly denied.

3. Trial § Sib—

The failure of the court to give instructions on subordinate features of the case will not be held for error in the absence of request for instructions.

3. Trial § S3—

Where the trial court substantially complies with plaintiff’s oral request for instructions in respect to evidence of previous statements made by plaintiff tending to contradict plaintiff’s evidence on the stand, the failure to give more particular instructions on this aspect will not be held for error. G.S. 1-180 as amended by Chap. 107, Session Laws of 1949.

Appeal by defendant from Pless, J., at July Term, 1949, of McDowell. No error.

Tbis was an action to recover damages for an injury to plaintiff’s band alleged to bave been caused by tbe negligence of tbe defendant.

Plaintiff and defendant were engaged in clearing land for a pasture, tbe defendant using an axe. Plaintiff’s allegations and testimony were to tbe effect that as plaintiff was pulling ivy off a stump bis right band came back with tbe pull, and tbe defendant, wbo was behind him, carelessly and without noting plaintiff’s proximity, struck down with his axe and cut plaintiff’s band, severing bis little finger and permanently injuring tbe nerves in bis band.

Defendant denied negligence on bis part and pleaded tbe contributory negligence of tbe plaintiff. His evidence tended to show that tbe place of the injury was on a steep grade, and that plaintiff was cutting a pine tree, and that plaintiff in pulling bushes suddenly stumbled backward and downward, and fell under tbe axe just as it was descending, too late for defendant to arrest the stroke.

Issues of negligence, contributory negligence and damage were submitted to tbe jury and answered in favor of plaintiff. From judgment ■on tbe verdict defendant appealed.

Boy W. Davis for plaintiff, appellee.

William, C. Chambers for defendant, appellant.

Devik, J.

Defendant assigns error in tbe denial of bis motion for judgment of nonsuit. He presents tbe view that tbe evidence was insufficient to show negligence on bis part, or, if so, that tbe contributory negligence of plaintiff as a proximate cause of tbe injury was made out by tbe plaintiff’s evidence. However, considering tbe evidence in tbe light most favorable for tbe plaintiff on tbis motion, we think tbe case was properly submitted to tbe jury. Fitzgerald v. R. R., 141 N.C. 530, 54 S.E. 391; Cashwell v. Bottling Works, 174 N.C. 324, 93 S.E. 901; Wyrick v. Ballard Co., Inc., 224 N.C. 301, 29 S.E. 2d 900.

Defendant noted exceptions to tbe judge’s charge to tbe jury, and .assigns error for that tbe court failed therein to give instructions to tbe jury as to certain subordinate matters of evidence, but, as there was no request for instruction, these exceptions cannot be sustained. School District v. Alamance County, 211 N.C. 213 (226), 189 S.E. 873.

Defendant also assigns error in tbe failure of tbe court to review the ■evidence of witnesses as to statements previously made by plaintiff which •defendant contended served to contradict plaintiff’s evidence on tbe .stand. It appears from tbe record that tbe court substantially complied with plaintiff’s oral request in tbis respect and no prejudicial effect is perceived. In tbis connection it may be noted that by Chap. 107, Session Laws 1949, tbe language of G\S. 1-180 was amended by striking out tbe previous requirement that tbe judge in giving a charge to a petit jury '“shall state in a plain and correct manner tbe evidence given in tbe case and declare and explain tbe law arising on tbe evidence,” and providing merely that “be shall declare and explain tbe law arising on tbe evidence given in tbe case. He shall not be required to state such evidence except to tbe extent necessary to explain tbe application of tbe law thereto; provided tbe judge shall give equal stress to tbe contentions of plaintiff •■and defendant in civil action.”

Tbe trial seems to have been free from substantial error, and tbe result will not be disturbed.

No error.