Rose v. Shea Bros. Construction

140 S.E. 733, 194 N.C. 742, 1927 N.C. LEXIS 200

• Court: Supreme Court of North Carolina
• Decided: December 21, 1927
• Status: Published

Opinion

Stagy, C. J.

Consideration of the exceptions seriatim, is preter-mitted, as we find it necessary to award a new trial for error in the following instruction to the jury:

“The court charges you that a party is liable for injury to another where it has not provided machinery and appliances such as are in common and general use. One place is not sufficient to make it common and general use.”

The vice of this instruction lies in the fact that it not only omits any reference to proximate cause, but it also eliminates consideration of plaintiff’s alleged contributory negligence and assumption of risk on the ultimate issue of liability. The evidence with, respect to these issues is not all one way.

The case on appeal was not settled by the judge, and it is possible that the charge, as reported, is incomplete, but we must take the record as we find it. A somewhat similar instruction was considered in the recent case of Hurt v. Power Co., ante, 696, and, on authority of what was said in that case, a new trial must be awarded.

New trial.