62 S.E. 890 | N.C. | 1908
Lead Opinion
DEFENDANT'S APPEAL. Action of damages for injuries caused by defendant's negligence. Under orders of the foreman the plaintiff and three others took in their hands a stick of lumber, which was lying partly submerged in the water, and walked sideways with it, and while trying to climb up a five foot embankment the plaintiff stumbled and fell. The stick of timber fell on him, injuring him. Plaintiff testified that the defendant had for years used lug hooks in such work, which grasp a stick of timber; that if the lug hooks had been used on this occasion he would have walked forward, instead of sideways, at some distance from the stick of timber, and could hardly have stumbled and (160) fallen; and if he had, the lug hooks would have held the timber so that it would not have fallen on him at all; that he asked the foreman if they should use the lug hooks with that log, but the foreman told them not to do so, but to carry the log in their hands.
The defendant's exceptions cannot be sustained. It was competent for the purpose of showing his deceased earning capacity to ask the plaintiff what wages he received before the injury, and what he was receiving, in his condition, at the time of trial. Wallace v. R. R.,
The motion to nonsuit was properly denied. The case was properly one for the jury.
The defendant having offered in evidence part of paragraph five of the complaint, it was proper to refuse to admit it, unless the whole paragraph was offered. The paragraph was not separable into two, as in Hedrick v. R.R.,
The court charged the jury, "It was the duty of the defendant railroad company to furnish the plaintiff with safe and suitable tools and appliances with which to do the work required of him by the defendant. The plaintiff will not be held to have assumed the risk in undertaking to perform a dangerous work, unless the act itself was obviously so dangerous, that in the careful performance the inherent probabilities of injury were greater than those of safety." The defendant could not complain of this.Orr v. Telegraph Co.,
The court committed no error in charging the jury, as follows (which was duly excepted to): "That if the jury should find, by the greater weight of the evidence, that lug hooks were, at the time of the injury, used by railroads doing like work, such as moving heavy timbers, then it was the duty of the defendant to furnish the foreman with lug hooks; and should you further find, by the greater weight of (161) the evidence, that the timber which the plaintiff was handling was such timber, because of weight, length, ground and surroundings, *118 as would lead a man of ordinary prudence to see it was safer to use lug hooks than to use his hands, then failure of defendant to provide, and have them for use, would be negligence, and should the jury find that this negligent act was the proximate cause of the injury, they should answer the first issue `Yes.'"
And the court also correctly charged, though excepted to: "If the jury should find, by the greater weight of the evidence, that while the plaintiff was carrying the log he stumbled and fell, and, while down, his fellow servants, when they could have prevented the injury by holding the log, negligently and carelessly threw down their end of the log, when, by the exercise of ordinary prudence, they could have held it and prevented the injury, then it would be chargeable to the negligence of defendant's employees, and if this negligence of fellow servants was the proximate cause of the injury, the jury would answer the first issue `Yes.'"
Several of the exceptions taken are abandoned, because not brought forward in the defendant's brief. Rule 34. Those not thus abandoned, and not discussed by us above, are without merit.
No error.
PLAINTIFF'S APPEAL.
Addendum
The court instructed the jury: "Whatever you (162) may allow, if you do allow damages, is the end of it. He could not sue any more if his pain and suffering were to go on. The doctor says that the injury is not permanent. The presumption is that it is ended. If you allow damages, therefore, you will not allow for any pain, or suffering, or diminished capacity for labor beyond the present. Your inquiry as to damages will not extend to the future, but shall be limited to such damages as he has sustained up to the present moment." The plaintiff's exception to this must be sustained. There was other evidence for the plaintiff that his injury was permanent. It was error to take the doctor's opinion as conclusive. It was error to hold that there was a presumption that all the injury was ended. It was also error to charge that the inquiry as to damages could not extend to the future, but should be limited to the damages sustained up to the trial.
The true rule is, that where the plaintiff has been injured by the negligent conduct of the defendant, he is entitled to recover (163) damages for past and prospective loss, resulting from the defendant's wrongful and negligent act; and this may embrace indemnity for actual expense incurred in nursing, medical attention, loss of time, loss from inability to perform mental or physical labor, and of capacity to earn money; and for actual suffering of body and mind, which are the immediate and necessary consequences of his injury. Wallace v. R. R.,
These errors affect only the issue as to damages and in no wise relate to the findings upon the other issues. In such cases, the court, in its discretion, usually grants a new trial only upon the issue as to damages. The practice is thus stated in Hall v. Hall,
This is especially a case in which the new trial should be limited (164) to the issue as to damages, for the defendant excepted and appealed, and on examination of his exceptions we found no error as to the other issues. We grant a new trial on the only issue brought up for review by plaintiff's appeal.
Partial new trial.
Cited: Murdock v. R. R.,
