Holder v. Giant Lumber Co.

BbowN, J. Tbe principal question discussed on tbe argument of tbis case by tbe learned counsel for tbe defendant is not presented in sucb a manner tbat we can consider it. As to wbetber there is sufficient evidence of negligence to justify tbe submission of tbe question to tbe, jury can only be presented by a motion to nonsuit, or by a proper prayer for instruction. No motion to nonsuit appears to have been made, and we are debarred from considering tbe prayers for instruction because of tbe objection of tbe plaintiff tbat tbey were not filed witbin tbe time required by tbe statute. After tbe argument commences it is well settled tbat counsel will not be permitted to file requests for special instructions without leave of tbe court, and no sucb leave appears to bave been given in tbis case, for tbe court declined to consider tbe prayers after tbey were banded up. In Craddock v. Barnes it is said tbe time witbin which special instructions should be requested must be left to tbe sound discretion of tbe presiding judge, and tbis Court will be- slow to review tbe exercise of sucb discretion; but tbe judge must so order bis discretion as to afford tbe counsel a reasonable time to prepare and present their prayers. 142 N. C., 89; Biggs v. Gurganus, 152 N. C., 176. Tbe assignments of error relating to tbe hypothetical questions asked Dr. Duncan, we think, are without merit. It is unnecessary to set out tbe questions themselves. Tbe opinion asked of tbe witness did not trespass at all upon tbe province of tbe jury. These questions only elicited from tbe physician bis opinion of tbe effect of tbe wound upon tbe knee, and also bis opinion upon tbe cause of tbe suffering alleged to bave been endured by tbe plaintiff. We think tbe hypothetical questions were framed correctly, according to the rule laid down in Summerlin v. R. R., 133 N. C., 551. *179 We do not think the assignments of error relating to the charge of the court can he sustained. His Honor seems to have followed the well settled decisions of this Court relating to the duty of the master to furnish proper tools and appliances to his servant. Mercer v. R. R., 154 N. C., 400, and cases cited. Upon a review of the entire record, we find No error.