Babbs v. Eury

Brogden, J. Tbe defendant asserted that the motion for nonsuit should have been granted for the reason that the evidence of the plaintiff disclosed that at the time of his injury he was undertaking “to repair” a truck on the highway in violation of section 10 of the ordinances of the Highway Commission. The plaintiff asserts that the mere tying of a red lantern on the rear of a truck is not a work of “repair.” The textbooks and decided cases have usually construed the term, “repair” to mean restoration to original condition as nearly as possible. Manifestly, in the ordinary transactions of life the word “repair” presupposes a defect, imperfection or deterioration in the truck. The plaintiff undertook to more securely fasten a red lantern, which, of course, involved no idea of defect. In reference to swinging gates, this Court has held that “a change is not a repair.” Knight v. Foster, 163 N. C., 329. Consequently, there is no evidence that the plaintiff at the time of his injury was violating any statute designed for the preservation and protection of life or limb. See C. S., Michie’s Code, 1931, 2621(72). There are other exceptions to the charge and to the failure to give requested instructions, but a careful examination of the record does not produce the conclusion that error was committed in applying the law to the facts. Indeed, the cause presents in its essential aspects, only controverted issues of fact, and such issues have been brought to rest by the verdict of the jury. Affirmed. SohbncK, J., took no part in the consideration or decision of this case.