Carter v. Town of Leaksville

*562 Hoke, J. Ve have given tbis case careful consideration, and we are of opinion tbat no error lias been shown that would justify tbe Court in disturbing tbe results of tbe trial. It was.chiefly insisted for plaintiff that the court in its charge, when stating certain contentions of defendant, gave recognition and emphasis to facts well calculated to influence tbe action of tbe jury when there bad been no evidence of such facts presented, and particularly to tbe position urged tbat plaintiff drove on tbe bridge with an excessive load, and when be knew or had reason to know tbat tbe bridge was not strong enough to stand tbe strain to which it would be subjected. We have held, at this term, in Barham v. Holland, that, under certain circumstances, this may be so prejudicial as to constitute reversible error, but the position is not ojien to plaintiff on tbis record for the reason that, while defendant offered no testimony, there were facts in evidence on the part of the plaintiff which permitted the inference referred to, and the suggestion therefore was well within the range of legitimate argument and was not improperly recognized as such in the charge of the court. Nor do we think that the court in its charge was improperly restrictive as to the duty resting on defendants in reference to the strength of the bridge they were required to build. Construing the charge as a whole, the correct way of interpreting it (S. v. Exum, 138 N. C., 599), it imposed upon defendants the duty of constructing and maintaining a bridge of sufficient strength to bear up the weight of any vehicle of transit that could be reasonably expected in the vicinity where it was placed, and tbis, in our opinion, was the correct measure of defendant’s duty concerning it. Again, it was objected tbat bis Honor, after declining to submit an issue on contributory negligence, as requested by defendant, allowed the jury to consider the testimony tending to establish contributory negligence in determining tbe first issue. There was averment of contributory negligence in tbe answer, with facts in evidence tending to support it. In such case, we bave frequently said tbat it is better to submit a separate issue directly responsive to the pleading and proof. It has been also held, however, tbat tbe failure to submit such an issue will not constitute error when it appears tbat tbe objecting party has been properly given tbe benefit of every position open to him on tbe evidence in tbe determination of tbe first issue. Ruffin v. R. R., 142 N. C., 120. In tbe present instance, we are unable to see tbat tbe plaintiff or bis cause has been in any way prejudiced in tbis respect by tbe manner in which tbis evidence was submitted to tbe jury, and on perusal of tbe entire record we must bold tbat no prejudicial error has been made to appear. No error.