Beaver Ex Rel. McGraw v. Fetter

97 S.E. 145, 176 N.C. 334, 1918 N.C. LEXIS 247

• Court: Supreme Court of North Carolina
• Decided: November 6, 1918
• Status: Published

Opinion

AlleN, J.

1. The first assignment of error is not sustained by the record. The witness was asked if he had done similar work before, and how many men were required, but his answer was that they generally had sufficient tools, which has no bearing on any alleged negligence of defendant, and could not have affected the verdict.

2. The earning capacity of the plaintiff before, and after his injury was competent and material on the issue of damages.

3. Frank Morgan, a carpenter, was present at the time of the injury and was testifying to a fact which came under his observation, and not to an opinion, when he stated that the defendant did not have sufficient help (Taylor v. Security Co., 145 N. C., 83; Ives v. L. Co., 147 N. C., 308; Britt v. R. R., 148 N. C., 40) ; but if incompetent, tbe witness bad already testified to tbe same fact, without objection, when be said, “To handle it right and no danger, you ought to have six or seven men. I did not see but three at the place and time of this accident.”

In Ives v. L. Co. the same question was presented, the Court said, “The reply of the witness that the defendant did not furnish rafting gear 'sufficient’ to do the business was competent as evidence of a fact within his knowledge. This was not a mere matter of opinion, but the result of knowledge and observation.”

4 and 5. The motion for judgment of nonsuit could not have been allowed at the close of the plaintiff’s evidence because, as is admitted in the brief of the defendant, “there was some evidence to go to the jury,” and if so, the same evidence was in at the conclusion of all the evidence, although its force may have been weakened by the evidence of the defendant or of the plaintiff in rebuttal.

"We have carefully examined the record and find no error.

No error.