Tise v. Town of Thomasville, 65 S.E. 1007

Tise v. Town of Thomasville

65 S.E. 1007 | N.C. | 1909

The facts are stated in the opinion of the Court. Action for damages for personal injuries to plaintiff, from her horse stepping into a hole in the street. The defense put on evidence that the hole had been filled up before the day the injury was alleged to have occurred. The plaintiff, in reply, was allowed to show that the hole was filled after the accident, and the defendant excepted.

The general rule is, that the plaintiff cannot show that after the accident the defect which caused the injury was repaired. Lowe v. Elliott,109 N.C. 581; Myers v. Lumber Co., 129 N.C. 252.

Subsequent repairs are not an admission of previous culpable negligence, nor should the parties be deterred from making repairs for fear it should be so held. But here, the defendant having put on evidence that the hole in the roadway had been filled up before the day of the injury, it was competent to show that the repairs were made afterwards — not that the repairs were evidenced tending to prove negligence, but simply to prove their date to contradict the defendant's witnesses.Westfeldt v. Adams, 135 N.C. 601. (283)

The evidence was also competent in corroboration of the plaintiff's evidence of the existence of the hole at that time and place. The defendant contends that, in this view, the court should have instructed the jury that this evidence was admitted only in corroboration. But Rule 27 (140 N.C. 662) provides that this is not error, "unless the *276 appellant asks, at the time of admission, that it be restricted." Hill v.Bean, 150 N.C. 437. Indeed, it does not appear that the judge did not give a proper instruction. The presumption is that he did, as there is no exception that he did not. S. v. Powell, 106 N.C. 638; S. v. Brabham,108 N.C. 796; Byrd v. Hudson, 11 N.C. 211.

The only other exception is, that the court permitted the jury to consider "permanent injury" as an element in assessing the damage. The court submitted to the jury the question whether or not there was permanent injury, and there was evidence which justified him in so charging.

No error.

Cited: Norris v. Mills, 154 N.C. 480; Pearson v. Clay Co., 162 N.C. 225;Boggs v. Mining Co., ibid., 394; McMillan v. R. R., 172 N.C. 856; S.v. McGlammery, 173 N.C. 749.