Holton v. Town of Morganton

74 S.E. 917, 159 N.C. 432, 1912 N.C. LEXIS 295

• Court: Supreme Court of North Carolina
• Decided: May 15, 1912
• Status: Published

Opinion

Per Curiam.

There are ten exceptions in the record, seven of which are to rulings upon the first issue, which we need not consider, as this issue was answered in favor of the plaintiff.

The eighth exception is to a part of his Honor’s charge on the second issue, which, when considered alone, might be the subject of criticism; but if read in connection with other parts of the charge, it will be seen that the plaintiff’s contention was fairly submitted to the jury.

His Honor told the jury more than once that the burden of the second issue was on the defendant, and that the plaintiff would not be guilty of contributory negligence if she exercised ordinary care.

The ninth exception is that his Honor failed to declare and explain the law as to contributory negligence.

We think be did so, but if be did not, it was tbe duty of tbe plaintiff to request more specific instructions. Craft v. Albemarle Timber Co., 132 N. C., 151.

It appears, however, from tbe record, that all prayers for instructions tendered by tbe plaintiff, six in number, were given, two of wbicb relate to tbe second issue, and are as follows:

“5. Tbe court instructs you that if you find tbe plaintiff saw tbe ditcb in front of ber across tbe sidewalk, if sbe exercised reasonable care in stepping down into tbe ditcb, and you find tbis was done for tbe purpose of being careful, and, in doing so, you find- that sbe used reasonable care, and in ber effort to get out of tbe ditcb in a reasonably careful manner sbe slipped and fell and an- injury was thereby caused, then sbe would not be guilty of contributory negligence, and you should answer tbe second issue No.’

“6. Tbe court instructs you that though tbe plaintiff saw tbe condition of tbe sidewalk, it would not bar ber of a recovery or make ber guilty of contributory negligence unless tbe obstruction or defect in tbe sidewalk was of such a character that a prudent person in ber condition would not have attempted to cross tbe same, .and if you find that sbe used reasonable or ordinary care for ber own safety, then you would answer tbe second issue Nod ”

Tbe tenth exception is formal, to tbe refusal to set aside tbe verdict.

We see no reason for reversing the judgment.

No error.