Sampson v. Atlantic & N. C. Railroad

70 N.C. 404

• Court: Supreme Court of North Carolina
• Decided: January 5, 1874
• Status: Published

Opinion

Beadjs, J.

His Honor charged the jury, that the plaintiff could not recover unless there was gross negligence on the part of the defendant. Nor could he recover if he contributed to the negligence. This was putting it very strongly against the plaintiff.

To this charge the defendant did .not except, nor did he ask for any other charge. The case therefore, comes up to us without any exception whatever. And the exception is taken for the first time upon the argument here, that his Honor did not charge the jury what is negligence in law. The exception comes too late. C. O. P. see. 301, prescribes that the appellant “ shall cause to be prepared a concise statement of the case, embodyiug the instructions of the Judge, assigned by him, if there be any exception thereto, and the requests of the counsel of the parties for instructions, if there be any exception on account of the granting or withholding thereof, and stating separately, in articles numbered, the errors alleged.” In the record and in the case sent up there: is mo exception to the charge, as given, and no request for any other charge, nor is any ground assigned for a new trial. If there was any error, it was but just to the Judge that his attention should have been called to it, in order that he might have corrected it; and the law requires that it should have been. We are reasonably indulgent of mere irregularities in cases sent up, if we can get at the merits; but we cannot allow cases to be dung at us in disorder in the hope that some advantage may be gained by accident; or that we will pass by all errors on the part of the appellant, in order to get at errors on the part of the appellee. The burden is upon the appellant.

There is no error.

Pira. Oukiam. Judgment affirmed.