161 S.E. 396 | N.C. | 1931
In his complaint the plaintiff alleged that on 10 April, 1929, he was in the service of the defendant as a lineman, doing work in Dinber, S.C., and was required to climb one of the defendant's poles for the purpose of disconnecting certain wires; that he braced the telegraph pole with four pike poles; that while he was in the act of releasing the wires, or after he had released them, the main pole and one of the pike poles broke; and that he was thrown to the ground and injured. The defendant denied all allegations of negligence and pleaded the plaintiff's contributory negligence in bar of his recovery. The issues of negligence, contributory negligence, and damages were answered in favor of the plaintiff and the defendant excepted and appealed.
The principal allegation of negligence is the defendant's failure to use ordinary care to provide for the plaintiff a safe pole and safe pike poles.
The defendant contended that the plaintiff had charge of the work, that it was his duty to inspect the poles, and that if they were defective *758
he should have discovered the defect and avoided the danger. It was the plaintiff's contention that he was not the supervisor of the work and that he was subject to the orders of a superior officer of the defendant.
The first and second assignments of error are addressed to the question whether the defendant is entitled to a judgment of nonsuit, and the seventh, eighth, and ninth, to the question whether upon all the evidence the court should have instructed the jury to answer the first issue against the plaintiff, the defendant insisting that the plaintiff had supervision of the work and that it was his duty to take such reasonable and available precaution for his own safety as the dangerous character of the service required. The defendant's position conforms to the established rule. Hicksv. Mfg. Co.,
Error would have been committed if the court had directed a verdict for the defendant on the second issue. Whether the plaintiff exercised proper care was a matter for the jury. He testified that he examined the pole before he went up on it; that he had had ten years experience and knew how to examine it; and that after the examination it seemed to be safe. Any apparent contradiction or inconsistency in his testimony did not destroy its competency; it was merely a circumstance tending to affect his credibility as a witness.
The third, fourth, and fifth assignments cannot be sustained for the reason that in effect they eliminate consideration of the defendant's alleged negligence and absolve the defendant in any view of the evidence from the duty of inspection. The sixth relates to a prayer for instruction, *759 the substance of which, or so much of it as the defendant was entitled to, is embraced in the charge.
The subject of the tenth assignment is the statement of a mere contention of the defendant, which if objectionable should have been called to the attention of the court at the time so that it might be corrected. S.v. Ashburn,
The instruction referred to in the eleventh exception if taken as a detached portion of the charge is incomplete; but when considered in connection with other portions, the charge being construed in its entirety, the paragraph excepted to does not constitute valid ground for a new trial. After giving specific instructions on the first issue his Honor told the jury that if they should find that the plaintiff had charge of the work and did not exercise reasonable care and that the injury was the result of his negligence he would not be entitled to recover. The ensuing paragraph was a statement of the converse of this proposition and must be construed in its relation to the whole charge.
The instruction as to damages is in substantial compliance with the law.Ruffin v. R. R.,
No error.