Patton v. W. M. Ritter Lumber Co.

Clark, C. J. Tbe plaintiff was injured in August, 1907, while acting as foreman of a squad of hands who were loading cross-ties on a car on defendant’s railway. The cross-ties were sawed by the defendant’s mill, whence they were run out on rollers, from which they fell upon a dock a few feet lower; thence they were dropped 12 to 18 feet to the ground below, from which place they were loaded on the defendant’s train. When the train came in, the plaintiff went upon the dock to prevent the ties being thrown down on his men while the train was being loaded. He asked one of the laborers if any more ties were coming out, who replied that there would be no more for about thirty minutes. The plaintiff then motioned his hands to get up the ties and load them on the car. About that time another tie was rolled out from the mill, which fell over on the dock, striking the plaintiff and seriously injuring him. The motion for a nonsuit was properly refused. The evidence tended to show that the defendant was guilty of negligence in not furnishing the plaintiff a safe place to work, and it was properly submitted to the jury. It was negligence in the defendant to permit its mill to run out the cross-ties to fall upon the dock and thence 12 to 18 feet to the ground, while the plaintiff and his men were engaged in picking up the ties to place them on the car. It was incumbent upon the company to stop the ties from coming out while the plaintiff and his men were engaged in *839 loading tbem. Tbe plaintiff was sent there witb bis men to load tbe car, and be bad no control over tbe operations of tbe mill. Tbe negligence of tbe fellow-servant in informing tbe plaintiff tbat no ties would come out of tbe mill for one-balf bour bas no bearing upon tbe negligence of tbe defendant. At most, it could only bave thrown light upon tbe question of contributory negligence, and in tbat aspect it tended to show tbat tbe plaintiff acted, not negligently, but prudently. It was therefore immaterial as to whether, under tbe law of West Virginia, tbe doctrine of liability for tbe negligence of a fellow-servant obtained or not. Tbe statute of limitations of West Virginia need not be considered, for such statutes affect tbe remedy, and not tbe cause of action. It follows tbat tbe statute of limitations of tbe place of trial — tbe lex fori — governs. 25 Cyc., 1018, 1020 (3). This action was begun within less than two years after injury was sustained. It is true, tbe cause of action set out in tbe complaint differs in many of tbe circumstances from tbe proof, but variance between tbe pleadings and tbe proof will be disregarded when there is no exception made at tbe trial. In Hendon v. R. R., 127 N. C., 114, this Court said: “If the' cause bad in fact been tried upon a substantially different aspect from tbat alleged in tbe complaint, tbe defendant, after acquiescing in such variance and making no objection to tbe issue submitted, cannot now be beard to make this objection to vitiate tbe trial. If necessary, tbe pleadings would be reformed, even after judgment, as authorized by Code, sec. 273, to conform to tbe facts proven.” As to tbe exception to tbe question asked Dr. Riddle, it was really not answered by him. But if it bad been, and be bad been admitted and bad testified as an expert without objection, a question of bis competency as an expert could not be raised by a general objection to a particular question thereafter. Summerlin v. R. R., 133 N. C., 551; Lumber Co. v. R. R., 151 N. C., 220. Tbe testimony of Patton as to plaintiff’s mental condition was competent. It was not necessary to show tbat be was an expert. Clary v. Clary, 24 N. C., 78, and cases cited thereto in tbe Annotated Edition. Tbe jury found upon tbe evidence tbat tbe alleged receipt was intended to apply only to compensation for tbe lost time, and tbat tbe plaintiff did not give defendant an acquittance for tbe injuries received by him. Tbe receipt is only prima facie. Shaw v. Williams, 100 N. C., 272; Barbee v. Barbee, 108 N. C., 584. This was a matter of fact for tbe jury, and bas been determined by tbem. It is not necessary to consider tbe other exceptions. No error.