DeBerry v. Carolina Central Rail Road

Davis, J., (after stating the facts). It was insisted in this Court, that, inasmuch as chap. 33, Acts of 1887, requires the defendant, if contributory neligence is relied on, to set it up in his answer, thereby making it of necessity an issue, it ought to have been submitted to the jury, and that it could not be waived, even by consent. We think differently. Doubtless, the purpose of the act was to require the defendant to set up the defence of contributory negligence in the answer, when relied on, so as to remove all doubt and enable the plaintiff to know, with certainty, the defence relied on, but whatever may have been the purpose of requiring it to be set up in the answer, in the case before us, the defendant was content to submit the question upon the first issue (under which it might be considered, Scott v. Railroad, 96 N. C., 428). When the attention of counsel for the defendant was directed to it, not only was no request made that the issue should be submitted, but they said, “they thought the whole [315] question involved in the first issue,” not only making no' objection, but affirmatively acquiescing, and the defendant cannot, for the first time, except in this Court, even if he had not acquiesced in the Court below. Having not only failed to ■ tender the issue in the Court below, but virtually declined it when suggested, he cannot now be heard to complain. Kidder v. McIlhenny, 81 N. C., 123; Curtis v. Cash, 84 N. C., 41; Oakley v. Van Noppen, 95 N. C., 60; McDonald v. Carson, 95 N. C., 377; Simmons v. Mann, 92 N. C., 12. His Honor charged the jury, that if they believed the evidence in regard to contributory negligence, they should find1 the first issue in the negative. The first exception presented in the record is to the exclusion of the testimony of Etheridge, as an expert in respect to • the questions asked. All the evidence offered by'the plaintiff, so far as it bears-upon the questions and answers which were excluded by the Court, is set out, and we are not only unable to see that it warrants the hypothetical questions put, but there is nothing in the plaintiff’s evidence involving any matter of skill,, or science, or peculiar knowledge, about which any juror of fair intelligence might not form as correct an opinion as the ■ supposed expert. “ The testimony of experts is not admissible upon matters of judgment within the knowledge and experience of ordinary jurymen.” 1 Greenleaf Ev., § 440, a. The second exception is to the remark made by the Judge,, when the witness Baldwin was recalled and asked a question, for the purpose of impeaching his credibility as a witness. "We are unable to see how the remark, though made in the hearing of the jury, could be construed into an expression of opinion, by the Court, upon any issue or question to be passed upon by the jury. The recalling of the witness-was a matter entirely within the discretion of the Court, and when the character of the impeaching question was made to-appear, it was simply a declaration, not of an opinion as to316 any fact to be passed, upon by the jury, but that he would have exercised his discretion differently if he had known the nature of the question asked. It was not a violation of the act of 1796; The Code, § 413. The third exception is to the refusal to give the instruction asked by the defendant and to the instruction given •instead. The instruction asked was properly refused, because there was no phase of the evidence that warranted it. There was no evidence that the plaintiff saw the condition of the platform before he stepped upon it, or that he saw that it was not safe. The instruction given in lieu of that asked was as favorable to the defendant as the evidence in respect to the instruction asked warranted. No one of the exceptions presented by the record can be ■sustained, and there is no error. • Affirmed.