Boggs v. Cullowhee Mining Co.

78 S.E. 274, 162 N.C. 393, 1913 N.C. LEXIS 365

• Court: Supreme Court of North Carolina
• Decided: May 28, 1913
• Status: Published

Opinion

Hoke, J.

We Rave carefully examined the record, and find no reversible error. Tlie charge of the court on the different questions presented is in accord with our decisions, and, the jury having accepted the plaintiff’s version of the matter, an actionable wrong is clearly established.

It was contended that the judge committed error in admitting for plaintiff a deposition of the witness H. A. Hein, when the witness had not signed the same. It is desirable always that the witness should subscribe the deposition, but the statute does not seem to require this, and, on authority, this is held not to be an essential, if the deposition is -otherwise regular and satisfactorily identified. Revisal, sec. 1652. Murphy v. Work, 2 N. C., 105; Rutherford v. Nelson, 2 N. C., 105; Moulson v. Hargrave, 1 Sergeant and Rawle, 201. It was further insisted that his Honor erroneously admitted evidence of “repairs done to the car by defendant. after, the occurrence, and, with a view of 'continuing the work, overhauling the car and putting in. new and heavier brakes,” etc.

Our decisions are to the effect that evidence of subsequent repairs are not, as a general rule, admissible as tending to establish negligence or an admission of it by the employer. Tise v. Thomasville, 151 N. C., 281; Myers v. Lumber Co., 129 N. C., 252; Lowe v. Elliott, 109 N. C., 581. There are several recognized exceptions, however, one being when evidence of the kind in question is brought out in showing “conditions existent at the time of the accident,” and another “when the evidence may become pertinent on the question of whose duty it is to make the repairs.” 29 Cyc., p. 618; Blevins v. Cotton Mills, 150 N. C., 493.

In the present case the evidence offered was chiefly that of the witness Je'sse Brown, who succeeded plaintiff in the work, and the testimony received, among • other things, was to the effect that, just after the injury, the car was overhauled, the rod mended, in a way described, and stronger brakes added, etc., and this work was done by the company’s blacksmith' and by direction of the superintendent and general manager.

On tbe record, there was direct issue made between these parties as to whose duty it ivas to keep the car in proper repair, and, without deciding whether the conditions presented would make the evidence competent under the first of the exceptions above stated, we are clearly of opinion that it came within the second, and was therefore properly admitted.

There were a good many exceptions to the refusal of the court to give cerftiin prayers for instructions by defendant, but to the extent justified by the facts in evidence they were sufficiently embodied in the general charge of the court, and, as heretofore stated, after careful examination, we find no error to defendant’s prejudice that would justify us in disturbing the results of the trial. The judgment is therefore affirmed.

No error.