Lane Ex Rel. Lane v. Paschall
154 S.E. 626
N.C.
1930
Check Treatment
Clarkson, J.

The defendant, at the close of the plaintiff’s evidence, made motion for judgment as in case of nonsuit. The motion was overruled and defendant excepted. Defendant did not renew his motion at the close of all the evidence, C. S., 567, nor did defendant, under O. S., 565, at the close of all the evidence in apt time request the court in writing to instruct the jury that in view of all the evidence the first issue should be answered “No,” and the second issue “Yes.” We think defendant is precluded from raising the question that the evidence on the part of the plaintiff was not sufficient to be submitted to the jury. Penland v. Hospital, ante, 314. Of course, this does not militate against material exceptions and assignments of error as to admission or exclusion of evidence or errors in the charge of the court. The record discloses “The judge, in his charge to the jury, gave the contentions of both plaintiff and defendants, and charged the law arising upon same.” Notwithstanding the defendant has waived his right to raise the question, yet we think the evidence sufficient to be submitted to the jury. Holt v. Mfg. Co., 177 N. C., 170; Boswell v. Hosiery Mills, 191 N. C., 549; Mahaffey v. Furniture Lines, 196 N. C., 810; Mills v. Mfg. Co., 198 N. C., 145; Gibson v. Gallon Mills, 198 N. C., 267.

In Sutlon v. Melton, 183 N. C., at p. 372, it is said: “It is the duty of a master who employs a servant in a ifiace of danger to give him such warning and instruction as is reasonably required by his youth, inexperience, and want of caj>acity, and as will enable him, with the exercise of ordinary care to perform the duties of his employment with reasonable safety to himself,” citing numerous authorities.

One may know the facts, yet not understand tho danger and risks that threaten him. This is especially so with those of immature years. Then again, to subject a youth to cleaning a machine unguarded, knocking dough off the lower roller while in motion, a space between the *367 rollers that caught the dough could catch a hand in the cleaning, these are elements to be considered by the jury on the question of negligence and contributory negligence.

There is no exception and assignment of error to the charge, and it is not set out in the record, but it is admitted by the defendant and the law also presumes that the court below instructed the jury on the law applicable to the facts.

Defendants excepted and assigned error to the following cross-examination of defendant Paschall: “Q. I ask you if it isn’t a fact that after this boy was hurt in your employ your insurance company canceled your insurance on the ground that you were employing too young and too cheap labor at this very machine? By the court: G-entlemen of the jury, do not consider that question at all as evidence of any kind whatever. Defendant asks that the jury be sent out at this time for a motion by.defendant, and the jury is sent to their room. Defendant moved the court to withdraw a juror and declare a mistrial. By the court: Gentlemen of the jury, as to the question just asked by counsel for the plaintiff, and the court told you, gentlemen, to step into your room, the court told you not to consider it as any evidence in any way, shape or form. Dismiss it from your mind and erase it from your memory; that is your duty, and I so instruct you.”

Defendant contended that it was error in the court below not to allow his motion to withdraw a juror and declare a mistrial, citing Allen v. Garibaldi, 187 N. C., 798. Dr that case the court below sustained defendant’s objection, but the motion for a new trial was not requested until after verdict. The Court said, at p. 800: “Without deciding upon the merits of these opposing contentions, we think the defendant’s motion for a new trial, after verdict, upon the ground stated, must be overruled. The court sustained the defendant’s objection, and this was all he was asked to do at the time. There was no motion for a mistrial, or venire de novo> because of these alleged improper questions. Defendant elected to proceed with the trial and to take his chances with the jury as then empaneled. Indeed, it appears that counsel for both sides, during the argument, cautioned the jury to disregard the suggestion of liability insurance, as there was no evidence in the ease tending to show its existence. Evidently the defendant did not consider it of sufficient importance on the trial to ask that a juror be withdrawn and a mistrial entered.”

In the present case, the court not only sustained defendants’ objection, but in the most emphatic language told the jury, “Dismiss it from your mind and erase it from your memory; that is your duty, and I so instruct you.” We think it was in the sound discretion of the court below to either grant a new trial or charge the jury as was done. Holt v. *368 Mfg. Co., supra; Gilland v. Stone Co., 189 N. C., 783; Fulcher v. Lumber Co., 191 N. C., 408; Smith v. Bitch, 196 N. C., at p. 78.

The other exceptions and assignments of error present no new or novel proposition of law, and we think thei’e is no merit in them. In law we find

No error.