Tillett v. Norfolk Southern Railroad

82 S.E. 866, 166 N.C. 515, 1914 N.C. LEXIS 439

• Court: Supreme Court of North Carolina
• Decided: September 23, 1914
• Status: Published

Opinion

AlleN, J.

In the case of Pigford v. R. R., 160 N. C., 93, in which the evidence was very much like that in this case, Asso-. date Justice Walker delivers a comprehensive and learned opinion which covers all of the exceptions of the defendant as. to negligence, assumption of risk, and contributory negligence, and further discussion of these questions here is unnecessary.

The ease of Bryan v. R. R., 128 N. C., 387, relied on by the defendant, is not in point, because in that case there was no evidence of failure to furnish a sufficient force of hands, and it: was because of failure to produce such evidence that the Court held that the injury to the plaintiff was the result of an accident.

The exceptions to evidence cannot be sustained.

If the answer to the first question is objectionable as an expression of opinion, as contended by the defendant, the same witness gave the same testimony without objection. He testified.to the circumstances attending the injury, the weight of the-rails and the number of hands employed, and said, when there' was no objection taken, “If we had had as many as four men we would have loaded it all right.”

The answer to the question which is the subject of the second, exception to the evidence had very little, if any, probative force, and could not constitute reversible error.

The custom, which is very general, of allowing juries to return their verdicts to the clerk in the absence of the judge, is not approved, as it frequently results in misunderstandings and in an attempt to impeach the verdict; but in this case the findings of the judge show that the verdict upon which the judgment: is rendered was agreed to before the jury separated, and there is nothing to indicate that any improper influence induced tbe verdict, and tbe action of bis Honor in refusing to set it aside is sustained. King v. Blackwell, 96 N. C., 322; Luttrell v. Martin, 112 N. C., 594.

In tbe first of these cases it was agreed that tbe clerk might take tbe verdict of tbe jury and tbe court adjourned at 7 p.. m. until 9 :30 o’clock tbe next day. Tbe jury coming to a conclusion at 11:30 p, m. and tbe clerk having gone home, by permission they placed their verdict in an envelope and sealed tbe same, wrote on tbe back of the envelope, “Verdict of tbe jury,” and banded it to tbe sheriff of tbe county, who bad tbe jury in charge. Tbe sheriff placed tbe envelope in bis safe and on tbe meeting of tbe court tbe judge bad tbe jury called into tbe box and tbe foreman in tbe presence of tbe jury opened tbe envelope, and it was held that tbe exception to tbe verdict could not be sustained; and in tbe second case tbe jury returned their verdict to tbe clerk without answering tbe third issue, and on tbe next day tbe judge called tbe jury into tbe box and permitted them to answer this issue, although it was in evidence that some of tbe jurors bad tallied with several parties, after their separation, about tbe case, and it appearing that tbe jury bad agreed upon an answer1 to tbe third issue before they separated and tbe court finding that they bad not been influenced by anything said to them, tbe verdict was sustained, tbe Court saying: “Tbe jury having found tbe third issue before their separation, it was no error to permit them to assemble again and write it down, especially as tbe judge finds as a fact that tbe jury bad not been influenced by what bad been said to them after their separation.”

No error.