Kelly v. Raleigh Granite Co.

Supreme Court of North Carolina

Kelly v. Raleigh Granite Co.

156 S.E. 517, 200 N.C. 326, 1931 N.C. LEXIS 316

CourtSupreme Court of North Carolina

DecidedJanuary 27, 1931

StatusPublished

Cited by9 cases

This text of 156 S.E. 517 (Kelly v. Raleigh Granite Co.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kelly v. Raleigh Granite Co., 156 S.E. 517, 200 N.C. 326, 1931 N.C. LEXIS 316 (N.C. 1931).

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Opinion

BbogkeN, J.

Certain photographs were offered and admitted by the trial judge for the purpose of illustrating the testimony of witnesses. The plaintiff did not know which car injured him, but testified “they were all equally as had.” The photographs were taken about three and a half months after the injury, but the plaintiff testified, “The cars of which I took pictures were in substantially the same condition as at the time I was hurt.” Hence the photographs were admissible for the restricted use specified by the trial judge. Honeycutt v. Brick Co., 196 N. C., 556, 146 S. E., 227.

There was also objection to the following evidence: “Of your own knowledge, for how long a time did the superintendent of the Raleigh Granite Company know of those doors bulging over?” (Answer) : “As much as six months. Some of them always bulged out. They are all alike, and some are worse than others.” This evidence was competent on the question of notice to the employer of the defect complained of. Blevins v. Cotton Mill, 150 N. C., 493, 64 S. E., 428.

There are exceptions to the charge of the trial judge, relating to contributory negligence, but a careful examination of the instructions in their entirety discloses no reversible error. There was sufficient evidence of negligence to be submitted to the jury, and, while it is conceded, that the plaintiff was doing a dangerous work, and perhaps was *328 fully aware of tbe danger, be bad a right to rely upon tbe assumption that tbe engineer would not suddenly move tbe cars without warning and without a signal. It was tbe function of tbe jury to determine whether the danger was so open, obvious and imminent that no man of ordinary prudence would undertake to couple tbe cars under the circumstances. Mau lden v. Chair Co., 196 N. C., 122, 147 S. E., 740.

No error.

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BbogkeN, J.

Certain photographs were offered and admitted by the trial judge for the purpose of illustrating the testimony of witnesses. The plaintiff did not know which car injured him, but testified “they were all equally as had.” The photographs were taken about three and a half months after the injury, but the plaintiff testified, “The cars of which I took pictures were in substantially the same condition as at the time I was hurt.” Hence the photographs were admissible for the restricted use specified by the trial judge. Honeycutt v. Brick Co., 196 N. C., 556, 146 S. E., 227.

There was also objection to the following evidence: “Of your own knowledge, for how long a time did the superintendent of the Raleigh Granite Company know of those doors bulging over?” (Answer) : “As much as six months. Some of them always bulged out. They are all alike, and some are worse than others.” This evidence was competent on the question of notice to the employer of the defect complained of. Blevins v. Cotton Mill, 150 N. C., 493, 64 S. E., 428.

There are exceptions to the charge of the trial judge, relating to contributory negligence, but a careful examination of the instructions in their entirety discloses no reversible error. There was sufficient evidence of negligence to be submitted to the jury, and, while it is conceded, that the plaintiff was doing a dangerous work, and perhaps was *328 fully aware of tbe danger, be bad a right to rely upon tbe assumption that tbe engineer would not suddenly move tbe cars without warning and without a signal. It was tbe function of tbe jury to determine whether the danger was so open, obvious and imminent that no man of ordinary prudence would undertake to couple tbe cars under the circumstances. Mau lden v. Chair Co., 196 N. C., 122, 147 S. E., 740.

No error.

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Bluebook (online)

156 S.E. 517, 200 N.C. 326, 1931 N.C. LEXIS 316, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-raleigh-granite-co-nc-1931.

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