Speight v. Seaboard Air Line Railway

Allen, fl. If we were, permitted to consider the portions of the charge excepted to by the plaintiff, alone and not in connection with other parts of the charge, we might conclude there was prejudicial error; but we cannot do so. “The charge and every part thereof is given to the jury for their instruction and guidance, and they must consider it as a whole. They have no right to select such parts as suit themselves and reject the remainder, nor can counsel be permitted to do so upon an appeal to this Court. Such a course would be grossly unfair to the trial judge and would make the ultimate determination of causes depend more upon the skillful fencing of legal swordsmen than upon the merits. It is entirely proper for the court to explain or even correct any preceding portion of its charge, if in its opinion it is necessary to present the case fairly and fully. This is so well settled as scarcely to require the citation of authority. Cowles v. Hall, 90 N. C., 330, 333; Lewis v. R. R., 95 N. C., 179, 188; S. v. Keen, ibid., 646, 648.” Everett v. Spencer, 122 N. C., 1011. “In construing an instruction given by the trial judge, the entire charge will be examined and language, excepted to read in connection with the context.” Liles v. Lumber Co., 142 N. C., 39. [86] The charge must be taken in its entirety, and not in “broken doses.” Wilson v. R. R., 142 N. C., 333. This principle has been approved in Westbrook v. Wilson, 135 N. C., 403; S. v. Malone, 154 N. C., 200; Brazille v. Barytes Co., 151 N. C., 454, and in numerous other cases, and when applied to the charge before us, we find no reversible error. The rule stated by his Honor for the admeasurement of damages in the event of death was in accordance with precedent. Pickett v. R. R., 117 N. C., 616; McLamb v. R. R., 122 N. C., 862; Mendenhall v. R. R., 123 N. C., 275; Watson w. R. R., 133 N. C., 188; Gerringer v. R. R., 146 N. C., 32. The charge in the Mendenhall case has been specially commended, and in the Watson case it was suggested that it would not be improper to illustrate the rule by calculations. The language criticised in the first exception was favorable to the plaintiff. One of the counsel for the defendant had argued before the jury that some damages ought to be deducted on account of the negligence of the intestate in going on the track, and his Honor undertook to correct any impression made against the plaintiff by the argument, by telling them that they could not consider the negligence of the plaintiff under the fourth issue, and that evidence of his conduct, character, and habits were only relevant on the question of his earning capacity. The charge as to the effect of the mortuary tables is fully sustained by authority. Russell v. Steamboat Co., 126 N. C., 967; Sledge v. Lumber Co., 140 N. C., 461. It would have been erroneous to instruct the jury that the gross income of the deceased was to be ascertained upon the basis of his earnings at the time of his death, and the use of the language, “what he was making,” the subject of the third exception, might lead to the conclusion that he intended to do so, but when considered in connection with the context, it could not have misled the jury. His Honor had instructed the jury that evidence of habits, etc., had been introduced in order that the jury might determine whether the deceased would be constantly employed and industrious ; that the mortuary tables and evidence of habits, health, and sobriety were introduced for the purpose of ascertaining his [87] expectancy, and immediately preceding tbe language complained of, tbat they must ascertain from all tbe evidence what his income would he. Tbe jury were not instructed not to consider tbe evidence of Mrs. Speigbt, but tbat it was not controlling, and tbat tbe rule was not wbat some one would give bim, stating clearly tbat tbe net income was to be ascertained by deducting tbe personal expenses of tbe deceased from bis gross income during bis expectancy, and tbat tbe plaintiff was entitled to recover tbe present value of bis net income. Tbe plaintiff does not challenge tbe correctness of bis Honor’s calculations nor tbe matbematical rule adopted by bim, but contends tbat be usurped tbe powers of tbe jury, and in effect expressed an opinion on tbe weight of tbe evidence. An examination of tbe charge shows tbat tbe jury were carefully instructed tbat they must not accept tbe figures named, as they might be incorrect, and tbat they were used merely as an example. It was proper to explain to tbe jury tbat tbe interest of Mrs, Speigbt should be considered, and we find no expression of opinion in tbe last clause of tbe charge excepted to. There is an exception to evidence in tbe record, but bis Honor states tbat this exception was not entered at tbe trial. There is nothing in tbe record which justifies or supports tbat part of tbe judgment providing tbat, “In case Willis Speigbt and plaintiff file with tbe clerk a written agreement as to a reasonable fee for plaintiff’s attorneys, then tbe clerk will pay over to said attorneys said fee. If said Willis Speigbt and plaintiff can agree upon a division of tbe balance, then tbe said clerk iss authorized to pay it out to them,” and it is ordered tbat it be stricken out. Modified and affirmed.