Sears v. Atlantic Coast Line Railroad

Oct 15, 1919
Reporters:
, ,
Before:
Walker
Walker, J".,

after stating the case: It is assigned as error that the court did not summarize the defendant’s contentions but stated the plaintiff’s rather fully, and that the court laid special stress upon the issue as to damages, which led the jury to believe that there should be a recovery. We state the exceptions in defendant’s own words, as they appear in its brief:

“The defendant assigns as error the charge of the court, and particularly the following:

“ fOn the other band, the defendant contends that you cannot so find from the evidence and by the greater weight of it. The defendant contends that you should find from the evidence that the plaintiff and bis wife were late and that be put bis wife on board the train and then went ■ back to get tickets and baggage, and that before be returned to the train that the train bad left.’

*287 “Tbe defendant submits tbat tbis charge of tbe court is inadequate and not in compliance witb tbe statute, section 535, wbicb is as follows:

“ ‘He shall state in a plain and correct manner tbe evidence given in tbe ease and declare and explain tbe law arising thereon.’

“Tbe only question in tbe ease then is whether tbe charge of tbe court is sufficient, under Eev., sec. 535, tbe last clause of wbicb reads:

“ ‘But be shall state in a plain and correct manner tbe evidence given in the case, and declare and explain tbe law arising thereon.’

“We insist tbat there was an utter failure of tbe court to comply witb tbat provision of tbe statute.”

We are not persuaded tbat tbe criticism of tbe charge in tbe respect indicated is justified, but if it is, we have held repeatedly tbat such objections must be taken promptly or at tbe proper time, so tbat tbe judge may have opportunity to make tbe needed correction, if be bad misstated tbe contention of either party. In tbe absence of any such action on tbe part of tbe appellant at tbe trial we must assume tbat it was satisfied witb what tbe judge bad done. Mfg. Co. v. Building Co., 177 N. C., 103; Alexander v. Cedar Works, id., 138.

But we do not think tbat in tbis case tbe statement of tbe plaintiff’s contentions and tbe statement of tbe defendant’s were so unequal as to bring tbe case within tbe principle of Jarrett v. Trunk Co., 144 N. C., 299, and Lea v. Utilities Co., 176 N. C., 511, 514. Tbe defendant’s contentions were sufficiently stated, so far as appears, and especially is tbis true in tbe absence of any suggestion at tbe time from tbe defendant tbat it was not so. We have no doubt tbat if tbe matter bad been brought to tbe judge’s attention be would have added any other contention of defendant wbicb bad been inadvertently omitted. Tbe invariable rule is tbat if other instructions than those given are desired there must be a special request for them. Simmons v. Davenport, 140 N. C., 407; Davis v. Keen, 142 N. C., at p. 502; Ives v. R. R., 142 N. C., 131; Turrentine v. Wilmington, 136 N. C., 313; S. v. Kinsauls, 126 N. C., 1097. We said in Davis v. Keen, supra: “Any omission to state tbe evidence or to charge in any particular way should be called to tbe attention of tbe court before verdict, so tbat tbe judge may have opportunity to correct tbe oversight. A party cannot be silent under such circumstances and, after availing himself of tbe chance to win a verdict, raise an objection afterward. He is too late. His silence will be adjudged a waiver of bis right to object.” The defendant did not ask for any additional statement of its contentions, but elected to abide by the one made by tbe court, and there was no complaint until tbe verdict bad been returned. Tbis is too late. Silence seems to give consent. Tbe case of Blake v. Smith, 163 N. C., 274, is not an authority in favor of defendant’s position. There tbe judge only said to tbe jury, “Take tbe *288 case and settle it, as between man and man.” There was no attempt to instruct the jury, but it was simply leaving it to them to decide the issues “as between man and man,” without any rule or principle at all to assist them. But in the opinion it was said by the Court: “The manner in which the judge is to state the law and evidence for the assistance of the jury must necessarily be left, to a great extent, to his sound discretion and good sense.” And in S. v. Beard, 124 N. C., 811, the Court stated the same rule: “The manner in which the judge is to state the law and assist the jury to apply the law to the facts must be left, to a p great extent, to the good sense and sound judgment of the judge.” We cannot sustain the exception.

No error.