Ward v. Albemarle & Raleigh Railroad

MaoRae, J.: “The defendant excepts to the issues as submitted and to the refusal of his Honor to submit the issue tendered by the defendant.” The only issue tendered by the defendant which appears in the case is, “Was the water diverted by the defendant, if any, rain or surface-water?” The sixth issue, which,was withdrawn when the plaintiff took a nonsuit upon his third cause of action, was, “Did the defendant company negligently divert surface- *176 ■water and turn the same upon plaintiffs’ land?” The plaintiffs had abandoned all claim for damages by reason of the 'diversion and direction of surface-water upon their land. His Honor, in his charge upon the second and fifth issues, carefully defined “a water-course” and directed the attention of the jury to the difference between it and mere surface-water; he repeatedly used the word “water-course” and excluded all idea of surface drainage or extraordinary rain-fall. It would not have simplified the matter for the jury if he had presented the question in the alternative by submitting another issue, when the response to those already submitted necessarily negatived the idea of damage by surface-water. The second prayer of defendant was given in substance and nearly in words, and expressly excluded surface drainage, and the fifth prayer, which was given likewise, 'excluded drainage caused by excessive rain-fall. His Honor might have confined the issues to the fourth, fifth, eighth and ninth, as they comprehended all the others. We have examined them all under the defendant’s exception. They presented every phase of the mutual altercation between the parties with great particularity, and, with the instructions upon them, an ordinary juror could not fail to understand the matters in dispute. The testimony was concluded on Thursday evening, and on Friday morning just before the argument began the defendant’s counsel requested his Honor to put his charge in writing. By a reasonable construction of section 414 of The Code the Judge was entitled to have this request made at the close of the testimony on the preceding evening, and if it had then been made he would have had the opportunity to prepare his charge during the recess of the previous night. By the statute this request should be made at *177 or before the close of the evidence. In order to comply with the request, as he did, it must have been necessary for the Judge to write out his charge, in which every word must have been carefully weighed, during the progress of the argument, at which time he ought to have been free to listen to the counsel in order that he might, upon the better reason, have been able to make such change as he deemed proper in the prepared instructions, before delivery. But after one counsel for defendant had spoken, and while counsel for plaintiffs was in the midst of his remarks, the counsel for defendant handed up a request in writing for twenty-five special instructions, some of them long and most of them requiring careful consideration. It will be remembered that sometime during Thursday the Judge asked the attorneys on both sides to hand him their prayers for special instructions, if they intended to ask any, during the evening, not confining them to the strict rule, to prevent them from doing so at or before the close of the evidence. Let us consider, and we trust that it will .be accepted by the profession as final, whether these prayers were presented -in apt time. The statute (The Code, §415) is silent as to the time when they should be presented. “Counsel praying of the Judge instructions to the jury shall put their requests in writing, entitled of the cause, and sign them.” Early after the adoption of the Code of Civil Procedure it became necessary to consider this section with relation to the time at which prayers for special instructions should be presented, and in Powell v. Railroad, 68 N. C., 395, it was intimated that at the close of the evidence was the proper time, in order that the Judge might consider them while arranging or preparing his charge; and at the same time it was said that this Court did not mean to be understood that counsel should be prohibited, even after the Judge had finished his *178 instructions, from calling his attention to any point which he had inadvertently omitted, or his instructions as to which were not well understood. These suggestions have been generally followed in their spirit, though not in the strict letter thereof, until they have become a recognized rule of practice in our Courts. “It was evidently intended that the Judge should have time to consider and prepare his instructions, and it is unjust and unfair to him to present a prayer for special instructions at so late a period in the trial as to leave him insufficient time to consider them.” State v. Rowe, 98 N. C., 629. In State v. Barbee, 92 N. C., 820, specially relied upon by defendant’s counsel, where the counsel presented a written prayer after the case had been given to the jury, with the request to the Judge that if the jury should return and ask for further instructions he would give this as prayed, it was said: “In the order of procedure in the trial, the defendant had the right and the reasonable opportunity to ask the Court to give such instructions before the issue was given to the jury; after that, the Court might in its discretion give or decline to give them. * * * The defendant must ask for special instructions, as of right, in apt time in the ¡progress of the trial, else the Court may decline to give them.” The reason for the adoption of this time — the close of the evidence — as the limit of apt time is so clearly stated by Mr. Justice Clark, in Posey v. Patton, 109 N. C., 455, and in Merrill v. Whitmire, 110 N. C., 367, where all the cases bearing upon it are cited, that we might well have contented ourselves with a simple reference to the last named cases. But in deference to the earnest argument of the learned counsel we have deemed it proper to say this much. It should now be considered that in justice to the trial Judge the practice in this respect is settled, and left in his hands. *179 Administered as our Superior Courts are, there is no danger of too strict an adherence to the rule-; the inclination is in a liberal spirit to give to counsel every opportunity consistent with the business principles upon which our system of procedure is based, but’ there must of necesity be some recognized general rule of practice as to apt time by which the profession may understand their rights and duties in the premises. It has also been repeatedly declared by this Court that a general exception to the charge' as given cannot be considered. McKinnon v. Morrison, 104 N. C., 354; Hopkins v. Bowers, 111 N. C., 175, and the numerous cases there cited. There was no exception to the charge of his Honor upon the first issue1 — “ Are the plaintiffs the owners? ” etc.— and there was no exception to the evidence offered upon this issue. We think his Honor was warranted in giving the instruction. We did not understand the question of jurisdiction to have been seriously pressed by the learned counsel for defendant in his argument. We are of the opinion that the damages here claimed are not covered by the statute providing for the acquirement of rights of way by railroad companies (section 1943 et seq. of The Code). There is no error, and the judgment is Affirmed.