Tise v. Town of Thomasville

Supreme Court of North Carolina

Tise v. Town of Thomasville

65 S.E. 1007, 151 N.C. 281, 1909 N.C. LEXIS 250

CourtSupreme Court of North Carolina

DecidedNovember 11, 1909

StatusPublished

Cited by21 cases

This text of 65 S.E. 1007 (Tise v. Town of Thomasville) 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

Tise v. Town of Thomasville, 65 S.E. 1007, 151 N.C. 281, 1909 N.C. LEXIS 250 (N.C. 1909).

Pincite

Opinion

Clark, C. J.

Action for damages for personal injuries to plaintiff, from ber borse stepping into a bole in tbe street. Tbe defense put on evidence tbat tbe bole bad been filled up before tbe day tbe injury was alleged to bave occurred. Tbe plaintiff, in reply, was allowed to sbow.tbat tbe bole was filled after the accident, and tbe defendant excepted.

Tbe general rule is, tbat tbe plaintiff cannot show tbat after the accident tbe defect wbicb caused tbe injury was repaired. Lowe v. Elliott, 109 N. C., 581; Myers v. Lumber Co., 129 N. C., 252.

Subsequent repairs are not an admission of previous culpable negligence, nor should tbe parties be deterred from making repairs for fear it should be so held. But here, tbe defendant having put on evidence that tbe bole in tbe roadway bad been filled up before tbe day of the injury, it was competent to show that tbe repairs were made afterwards — not tbat the repairs were evidence .tending to prove negligence, but simply to prove their *283 date to contradict the defendant’s witnesses. Westfeldt v. Adams, 135 N. C., 601.

The evidence was also competent in corroboration of the plaintiff’s evidence of the existence of the hole at that time and place. The defendant contends that, in this view, the court should have instructed the jury that this .evidence was admitted only in corroboration. But Rule 27 (140 N. C., 662) provides that this is not error, “unless the appellant asks, at the time of admission, that it be restricted.” Hill v. Bean, 150 N. C., 437. Indeed, it does not appear that the judge did not give a proper instruction. The presumption is that he did, as there is no exception that he did not. State v. Powell, 106 N. C., 638; State v. Brabham, 108 N. C., 796; Byrd v. Hudson, 11 N. C., 211.

The only other exception is, that the court permitted the jury to consider “permanent injury” as an element in assessing the damage. The court -submitted to the jury the question whether or not there was permanent injury, and there was evidence which justified him in so charging. '

No error.

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Clark, C. J.

Action for damages for personal injuries to plaintiff, from ber borse stepping into a bole in tbe street. Tbe defense put on evidence tbat tbe bole bad been filled up before tbe day tbe injury was alleged to bave occurred. Tbe plaintiff, in reply, was allowed to sbow.tbat tbe bole was filled after the accident, and tbe defendant excepted.

Tbe general rule is, tbat tbe plaintiff cannot show tbat after the accident tbe defect wbicb caused tbe injury was repaired. Lowe v. Elliott, 109 N. C., 581; Myers v. Lumber Co., 129 N. C., 252.

Subsequent repairs are not an admission of previous culpable negligence, nor should tbe parties be deterred from making repairs for fear it should be so held. But here, tbe defendant having put on evidence that tbe bole in tbe roadway bad been filled up before tbe day of the injury, it was competent to show that tbe repairs were made afterwards — not tbat the repairs were evidence .tending to prove negligence, but simply to prove their *283 date to contradict the defendant’s witnesses. Westfeldt v. Adams, 135 N. C., 601.

The evidence was also competent in corroboration of the plaintiff’s evidence of the existence of the hole at that time and place. The defendant contends that, in this view, the court should have instructed the jury that this .evidence was admitted only in corroboration. But Rule 27 (140 N. C., 662) provides that this is not error, “unless the appellant asks, at the time of admission, that it be restricted.” Hill v. Bean, 150 N. C., 437. Indeed, it does not appear that the judge did not give a proper instruction. The presumption is that he did, as there is no exception that he did not. State v. Powell, 106 N. C., 638; State v. Brabham, 108 N. C., 796; Byrd v. Hudson, 11 N. C., 211.

The only other exception is, that the court permitted the jury to consider “permanent injury” as an element in assessing the damage. The court -submitted to the jury the question whether or not there was permanent injury, and there was evidence which justified him in so charging. '

No error.

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65 S.E. 1007, 151 N.C. 281, 1909 N.C. LEXIS 250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tise-v-town-of-thomasville-nc-1909.

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