Calhoun v. State Highway & Public Works Commission

181 S.E. 271, 208 N.C. 424, 1935 N.C. LEXIS 436

• Court: Supreme Court of North Carolina
• Decided: September 18, 1935
• Status: Published

Opinion

Stacy, 0. J.

The principal matter debated on brief is whether the action was commenced within six months from the completion of the project as provided by C. S., 3846 (bb). The question was not mooted in the court below and there is nothing on the record to show whether the action was, or was not, brought within the requisite time. In this state of the record, it would seem that, with justice to all, the question might well be left undecided, as a new trial must be awarded for failure to give tbe special instruction requested by defendant. Tbis will afford botb sides equal opportunity to be beard on tbe point at tbe next bearing. .

. With respect to tbe special instruction, requested by tbe defendant, it is tbe rule witb us, and very generally beld elsewhere, tbat, unless otherwise provided by statute or constitutional provision, an abutting property owner may not recover for damages to bis land caused by changing tbe grade of an established street or road when such change is made pursuant to lawful authority and there is no negligence in tbe manner or method of doing tbe work. Wood v. Land Co., 165 N. C., 367, 81 S. E., 422; Harper v. Lenoir, 152 N. C., 723, 68 S. E., 228; Dorsey v. Henderson, 148 N. C., 423, 62 S. E., 547; Jones v. Henderson, 147 N. C., 120, 60 S. E., 894; Wolfe v. Pearson, 114 N. C., 621, 19 S. E., 264; Meares v. Wilmington, 31 N. C., 73. Compare Bost v. Cabarrus, 152 N. C., 531, 67 S. E., 1066.

Tbe prayer being properly presented, in apt time, and containing a correct legal request, pertinent to tbe evidence and tbe issue in tbe ease, it was error to refuse it. Michaux v. Rubber Co., 190 N. C., 617, 130 S. E., 306. Tbe rule of practice is well established in tbis jurisdiction tbat when a request is made for a specific instruction, correct in itself and supported by evidence, tbe trial court, while not obliged to adopt tbe precise language of tbe prayer, is nevertheless required to give tbe instruction, in substance at least, and unless tbis is done, either in direct response to tbe prayer or otherwise in some portion of tbe charge, tbe failure will constitute reversible error. Parks v. Trust Co., 195 N. C., 453, 142 S. E., 473; Marcom v. R. R., 165 N. C., 259, 81 S. E., 290; Irvin v. R. R., 164 N. C., 5, 80 S. E., 78; C. S., 565.

Tbe defendant is entitled to a new trial. It is so ordered.

New trial.