Harrison v. Chappell

Ashe, J. We find nothing in the several grounds relied upon to sustain the motion for a new trial, which would warrant this court in reversing the judgment and granting a venire de novo. As to the first ground : It has been so repeatedly decided that the superior court only can grant a new trial on the [263] ground that the verdict of the jury is against the weight ©f evidence that it is unnecessary to cite any authority. The second ground is equally untenable, and in answer to it, it is only neeessary to refer to the statemontof the case and the evidence therein set forth. As to the third ground that the jury denied the operation ©f the law of nature: We do not understand what is meant, unless it is that the .seine was necessarily damaged by the ravages of use and time. Tf that is what is meant, there is nothing in the case to show that the jury did not give due •consideration to the law, in connection with the proof adduced as to the condition and value of the seine, for their finding is to the effect that the operation ©f this law of nature was so counteracted by needful repairs of the seine, as to leave It in as good condition and as valuable when returned to defendant in April, 1880, as when received by plaintiff in November, 1879. And lastly, as to the failure of the court to give proper instructions as to the measure of damages: His Honor at the conclusion of his charge to the jury expressly called upon counsel on both sides to say if they had any instructions to request, and they both declared that they had none. If any objection was to be taken to the charge of the eourt, then was the proper timo to do so; and the -failure to do it then, was an assent to the charge and could -not be taken after judgment upon a motion for a new trial. In the case of Morgan v. Smith, 77 N. C., 37, it is held: “ It was the duty of the plaintiff, if he desired fuller or more specific instructions, to have asked for them. If a contrary rule should prevail and .a party could get a new trial whenever upon a critical subsequent examination of a judge’s charge he could detect some point omitted or not fully treated, charges must be unnecessarily long, and even then few -verdicts would stand.” But even if the exception to the charge in this .case had been made in proper time,, we are unable [264] to disco-ver wherein it was erroneous. The instructions given by the judge to. the jury in regard to the measure of damages is substantially sustained in Sedgwick, 490. There is no error. The judgment of the superior court must be affirmed. No error. Affirmed.