Snyder v. Town of Asheboro

110 S.E. 84, 182 N.C. 708, 1921 N.C. LEXIS 307

• Court: Supreme Court of North Carolina
• Decided: December 21, 1921
• Status: Published

Opinion

Adams, J.

A change in the relative position of certain wires which were connected with the electric motor caused the iron rolls to revolve upward instead of downward; and the plaintiff, upon observing that the rolls were not adequately crushing the grain, placed his hand underneath and upon the rolls in search of the cause, when by reason of the reverse revolution his hand and arm were caught in the machinery and injured. The defendant contended that the proximate cause of the injury was the negligent act of the plaintiff in thrusting his hand into the machinery without apparent necessity. Evidence tending to show the plaintiff’s want of due care was, therefore, both pertinent and material. But the defendant’s exceptions to his Honor’s statement of the plaintiff’s contention concerning the established custom of examining the rolls cannot be sustained because no objection was made by the defendant at the time. Phifer v. Comrs., 157 N. C., 150. Ve presume the exceptions were intended to show the importance as well as the competency of evidence which the defendant sought to elicit from R. D. Bost. This witness was asked whether it was customary for the miller to put his hand upon the rolls of the first brake in order to determine its condition. The witness was not permitted to answer. It is not necessary to determine whether the witness had shown that he was qualified to answer, or to decide whether the evidence proposed was competent on the question of due care. Since the record fails to disclose what the witness would have said, we cannot assume that his answer would have been favorable to the defendant. It would be vain to grant a new trial upon the hazard of an uncertain answer by the witness. In re Smith's Will, 163 N. C., 466; Dickerson v. Dail, 159 N. C., 541; Boney v. R. R., 155 N. C., 95; Fulwood v. Fulwood, 161 N. C., 601; Schas v. Assur. Society, 170 N. C., 421. Exceptions 6, 12, and 13 cannot be sustained.

"We are unable to see wherein the admission of the evidence to which the seventh and eighth exceptions relate constitutes reversible error.

Bufus Brady, a witness for the defendant, was not permitted to say whether it was necessary for a miller in the performance of his duties in a mill like that in which the plaintiff was injured to put his hand on the first brake while it was in operation, in order to determine its condition. The objection to the question was properly sustained. It is true that in certain circumstances a person of adequate knowledge and experience may testify whether a particular act is necessary to the accomplishment of a particular result; but in this case whether there was such necessity was a matter for consideration by the jury in their ultimate determination of the question of due care on the part of the plaintiff. Besides, the record does not suggest what the answer of the witness would have been had the evidence been admitted.

Whether there was danger in putting the hand underneath the roll was likewise a question for the determination of the jury upon all the evidence indicating the character, motion, and general operation of the machinery by which the plaintiff was injured. Exceptions 7, 8, 9, 10, and 11 must be overruled. The others are merely formal.

The case seems to have been carefully tried, and the record is free from error.

No error.