Harris v. . Turner

Walker, J., after stating the facts as above: We do not see how there can be any error in the judge’s charge, and none is alleged. The case was left with' the jury upon the evidence as to the terms of the contract between the parties and as to the damages. The jurors were not bound to accept as true all the testimony offered by the plaintiff or the defendants, but could accept a part and reject the remainder, as they were the sole judges of the testimony, and what it tended to prove, which, of course, included the credibility of the witnesses. They might, for instance, have found that plaintiff had not promised to pay as much as the' defendants claimed, or had not bought, for himself, as much leaf tobacco as alleged. The objection of the defendants is not to the judge’s charge, but to the verdict, which is the only object of his attack — not to what the judge said, but to what the jury found. The judge left the question of damages entirely to the jury, for he could not decide it as a matter of law. We cannot agree with the defendants’ contention, in a legal sense, “That the verdict is inconsistent with any or all of the evidence,” and if de *325 fendants were entitled to recover $1,000, they were entitled, as a matter of law, to recover all of their claim. There was no request for an instruction to that effect, and there is no exception to the charge of a like nature. If the proposition be true, the point of the objection is not that the jurors decided contrary to the instruction of the court, for the court gave no such instruction, but it was that the jury failed to instruct themselves as to the law. When the judge left the amount paid by the defendants for the jury to find, defendants were silent, and, therefore, assented to this treatment of the question. If the defendants desired a' special instruction, to guide the jury, they should have asked for it. Simmons v. Davenport, 140 N. C., 407. We there held that if a party desires fuller or more specific instructions than those given by the court in the general charge, he must ask for them and not wait until the verdict has gone against him, and then, for the first time, complain that an error was committed. We repeated this rule in Davis v. Keen, 142 N. C., at p. 502, in these words-: “Any omission to state the evidence or to charge in any particular way should be called to the attention of the court before verdict, so that the judge may have opportunity to correct the oversight. A party cannot be silent under such circumstances and, after availing himself of the chance to win a verdict, raise an objection afterwards. He is too late. His silence will be adjudged a waiver of his right to object,” where the instruction of the court is not itself erroneous. This has been approved in many cases, and very lately in several. Baggett v. Lanier, 178 N. C., 132; Futch v. R. R., ibid., 282; Sears v. R. R., ibid., 285; S. v. Stancill, ibid., 683. It can make no difference how strongly the evidence supports the defendant’s view, it is still a question of fact to be settled- by the jury. In such a case, the remedy is a request to the court that the verdict be set aside as being against the weight of the evidence, the decision upon which is in the discretion of the judge, and it is not reviewable. It would have been an invasion of the province of the jury if the judge had instructed them to answer a question of fact in a particular way. Revisal of 1905, sec. 535; Withers v. Lane, 144 N. C., 184; S. v. Rogers, 173 N. C., 755; S. v. Windley, 178 N. C., 670. The plaintiff denied any liability to the defendants on the alleged “pin hook” account, or that he owed the amount claimed, raising thereby an issue for the jury. No error.