Kennedy v. Western Union Telegraph Co.

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 instruc *759 tion, 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.