Patterson v. . McIver

MerkdioN, J. The exceptions of the appellant are confined to the refusal of the court to give the jury the special instructions as prayed for. If it be granted that he was entitled to them, the court was not bound to give them in terms, if it gave the substance of them, not impairing their force, or so much of them as the facts of the case warranted: that was sufficient. Brink v. Black, 77 N. C., 59 ; Kinney v. Laughenour, 89 N. C., 365. Upon an examination of the special instructions prayed for and the charge given to the jury, we think the court gave ihe substance of so much of them as the defendants were entitled to have. The defendants contended that they did not receive the bale of cotton in question from the plaintiff; that he placed il on a platform that belonged to a railroad company in the town of Jonesboro, where cotton was placed in quantities by cotton dealers to be sold and shipped; that he carelessly left it there with instructions to defendants to sell it, if the price of cotton should reach eleven cents per pound, or when they might be instructed to do so; that if in any view of the matter, they must be treated as having received the bale of cotton, they did so gratuitously, and only as matter of favor to the plaintiff, and they could be held liable only for gross negligence, and the evidence did not prove such negligence. The court having reference to these grounds of defence, after " *498 -recapitulating the testimony, instructed the jury that they must ••■first find whether or not the defendants received the bale of cotton as alleged by the plaintiff. The question whether they did or not was put directly before the jury, with the cautionary explanation bearing upon the evidence, “ that if the bale was not delivered to defendants, but merely put upon the platform to stay there until defendants saw plaintiff, or until defendants got ready to sell under plaintiff’s instructions, the defendants had not received the bale and were not liable to plaintiff for its value.5’ This instruction embodies the substance of the first special instruction prayed for, except so much thereof as suggested a sale of the cotton to the defendants, and as to that there was not a particle of evidence tending to show such a sale; indeed it was not contended that the plaintiff had sold the cotton to the defendants. As to the question of negligence, the court instructed the jury that if the defendants received the cotton and it was held by them simply for the accommodation of the plaintiff in that case the defendants would be liable only for gross negligence or carelessness. This is the substance of the second special instruction prayed for, and is-quite as favorable as the defendants were entitled to, for it might -well be questioned whether the evidence in any view of it presented such question. There were no facts in evidence, so far as we can see, and no aspect of the case, that called for the third special instruction prayed for. No witness testified that defendants had notice from any source that a third party intended to remove the cotton, or as to what became of it. Where there are no facts that warrant a prayer for instructions the court ought not to give them. Nor were there facts in evidence tending to prove contributory negligence on the part of the plaintiff. If there was a delivery of the cotton to the defendants, as the plaintiff alleged, then the evidence showed that they took possession and control of it, and they were chargeable with it. There was no evidence to show that the plaintiff took control of it at all, after it was placed *499 ■on the platform by bis agent. The fourth instruction was, therefore, properly refused. The ease on the trial presented two leadiug aspects, one contended for by the plaintiff and the other by the defendants. The court very properly submitted both to the jury, with appropriate instructions as to each. Long v. Pool, 68 N. C., 479. Upon a careful examination of the whole charge of the court to the jury, we think that the defendants have no jiist grounds ■for complaint. The law applicable to the case was properly expounded by the court, and the matter was mainly one to be determined by the jury. No error. Affirmed.