Opinion
(Filed 5 November, 1914.)
1. Appeal and Error — Briefs — Assignments of Error Abandoned — Rules of Court.
Assignments of error not mentioned and discussed in the brief of appellant are taken as abandoned on appeal under Rule 34, and it is pointed out by the Court that upon mature consideration of counsel in making their briefs it is well for them not to set out useless assignments, so that the attention of the Court may be given to the material propositions of law presented in the appeal.
2. Pleadings — Amendments — Power of Courts — Trials — Issues — Instructions.
It is within the discretion of the trial court to permit amendments to the pleadings during the progress of the trial (Revisal, sec. 307), and where by such amendment certain matters formerly at issue have been eliminated, it is proper for the court to rule out evidence relating to the matters eliminated, and to reject issues and prayers for special instructions relating thereto.
3. Evidence — Depositions — Trials — Witnesses — Courts.
When the deposition of a witness, taken when he was in another State, has been read on the trial of the cause, in his absence, the trial judge may, in his discretion, permit the witness, then present, to orally testify after his deposition has been read in evidence.
4. Appeal and Error — Evidence — Questions — Objections and Exceptions.
Where questions are ruled out as evidence, it must be made to appear of record what the expected answer will be, so that the Court may see their materiality and relevancy, or exceptions taken thereto will not be considered.
5. Courts — Evidence — Expert Witnesses — Recross-examination — New Matter.
It is within the discretion of the trial judge to permit an expert witness to testify to new matter on his recross-examination.
6. Railroads — Train Orders — Copies — Identification — Witnesses — Nonexpert Evidence.
Where damages are sought in an action against a railroad company for a wrongful death alleged to have been inflicted on the deceased by reason of an erroneous train order, made out in original and carbon, causing a collision of two trains, wherein the deceased met his death, it is competent for a witness who has not qualified as an expert to testify that he had inspected the original order, and that the copy exhibited was not genuine.
7. Same — Meeting Points — Similarity of Names.
A railroad company having two stations on its road with similar names, "Grandy" and "Granite," wired from its proper department for two trains going in opposite directions to meet at one of these points, which they failed to do, resulting in a collision and the injury to the plaintiff, and the controversy turned upon the question which point was named in the order, the plaintiff contending that the order he received instructed "Grandy" as the meeting point. The plaintiff having been fully examined and testified he had no doubt that the order read "Grandy" instead of "Granite," was permitted to say that a paper-writing exhibited to him looked nearer like the one he had received than that introduced by the defendant, and that it read that the trains should pass at "Grandy," the name of the station as appearing upon the order being indistinct; and this is held no error.
8. Railroads — Collisions — Meeting Points — Pleadings — Amendments — Negligence — Issues.
The damages claimed in this action are sought for the alleged failure of a train order to properly name the meeting point of two of its trains going in opposite directions, whereby an injury was caused to the plaintiff, an employee on one of them. Held, the issues of negligence, contributory negligence, and damages were the proper ones, the question of assumption of risk having been excluded from the case by a permitted amendment of the pleadings.
9. Same — Trials — Evidence — Questions for Jury.
Where damages are sought in an action against a railroad company for its alleged negligence in giving the proper order for the meeting of trains at a certain station, resulting in an injury to an employee on one of the trains, upon which the evidence is conflicting, the controversy presents issues of fact for the determination of the jury.
10. Master and Servant — Federal Employers' Liability Act — Contributory Negligence — Damages.
Under the Federal Employers' Liability Act an instruction that the jury should "deduct," in proper instances, a reasonable amount for contributory negligence, instead of saying the damages should be "diminished on account of the contributory negligence of the plaintiff," is not held for error.
11. Evidence, Conflicting — Medical Expert — Trials — Questions for Jury.
Where expert evidence is conflicting as to whether locomotor ataxia could result from an injury received in a collision of two railroad trains, it is for the jury to determine the truth of the matter.
12. Master and Servant — Federal Employers' Liability Act — Contributory Negligence — Measure of Damages.
Semble, that an instruction under the Federal Employers' Liability Act is erroneous, that if the negligence of the plaintiff was equal to the negligence of the defendant, he could not recover, for in such cases the plaintiff would be entitled to the full amount of the damages, less an allowance of one-half to be deducted on account of his contributory negligence.
APPEAL by defendant from Allen, J., at May Term, 1914, of (165) WAKE.
R. N. Simms and Douglass Douglass for plaintiff.
Murray Allen for defendant.
The Court recommends a change in the statute as to selecting expert witnesses.
WALKER, J., dissenting; BROWN, J., concurs in dissent.
A large number of the assignments of error have been abandoned by failure of the appellant to make any argument or reference thereto in its brief. Rule 34. This is as it should be. During the progress of the cause counsel, out of the abundance of caution, necessarily take a great many exceptions which on fuller examination cannot be sustained, and in such case they should neither clog the brief nor divert the attention of the Court from the vital errors alleged therein. One vital error is sufficient to secure a new trial, and there is no necessity of urging a large number of exceptions on the attention of the Court when it will be more effective to concentrate the argument on those exceptions in which the counsel have the most confidence.
The following exceptions are thus abandoned: 1, 4, 5, 7, 8, 19, (166) 20, 21, 22, 23, 24, 28, 30, 31, 32, 34, 35, 38, 39, 40, 41, 42, 43, 47, 48, 49, 58, 59, 60, 65, 72, 74, 75, 86, 87, 91, and 94.
Exceptions 3, 6, 9, 10, 11, and 12 are to evidence relating to the "block system," but the judge expressly withdrew the same and instructed the jury not to consider it, after he had made an order allowing the plaintiff to strike out the allegations in the complaint relating to the block system, and this had been done.
Exceptions 13 and 14 cannot be sustained, for it was competent to read the depositions, as the witness was at the time absent in Virginia. Exceptions 15, 16, 18, 26, 27, and 29, to the admission of evidence, are overruled. In neither of them was there an exception to the answer, and as to the last five exceptions the witness was admitted as an expert. Exception 25 was because the court later in its discretion permitted the witness to be examined orally, though his deposition had been previously read. If the witness had testified orally it would have been in the discretion of the judge to have permitted him to be recalled, and the same is true here.
Exception 33 was to a pertinent question to the expert witness in opposition to the testimony of the expert witnesses of the defendant. Nor do we find any sound reason in favor of exceptions 36 and 37. The witness was an expert. Exception 44 is to a question asked on recross-examination, and permission to do so was entirely in the discretion of the court.
Exception 45 was to the plaintiff's inquiry of the witness Bryant, as to the paper introduced in evidence by the defendant purporting to be the train orders governing the plaintiff's action. The plaintiff contended that such paper was not genuine. This was not a question of an expert on handwriting, but merely required the witness who had seen and inspected the original to state whether or not this alleged carbon copy looked like the original.
Exception 46 is because the plaintiff, who had been fully examined whether he had any doubt about the correct reading of the writing, was permitted to say that the paper-writing looked nearer like the one he saw, and that at the time of reading it he had no doubt that it read that the train should pass at "Grandy."
Exception 50 was to the three issues submitted, which were the usual issues of negligence, contributory negligence, and damages which have been so often approved by the Court.
Exception 51 was to the refusal to submit the ten issues tendered by the defendant. The first six related to the assumption of risk, which had been withdrawn from the complaint and excluded from the consideration of the jury.
(167) Issues 7 and 8 were substantially the same as 1 and 2, which were submitted. The 9th and 10th issues tendered are covered by the 3d issue, which was submitted.
Exceptions 51 1/2 and 52 are to the permission accorded the plaintiff to amend his complaint. This was discretionary. Rev., 507. Exception 53 is the same as 51 1/2.
Exceptions 54, 55, 56, and 57 were to instructions requested as to the block system, telephone system, and the names of the stations, which were properly refused, because the court had stricken out those matters from the complaint and withdrawn the evidence relating thereto from the consideration of the jury.
Exception 61, to the refusal of an instruction that upon plaintiff's own evidence his failure to stop at Granite was negligence on his part, cannot be sustained.
As to exceptions 62, 63, 64, 67, and 68, the defendant in his brief practically concedes that they cannot be sustained.
As to exception 66, the instruction asked could not have been given after the amendment of the complaint.
Exceptions 69, 70, and 71 cannot be sustained, because they related to instructions upon issues 2, 4, and 6, tendered by the defendant, which were not submitted to the jury because they related to the assumption of risk, which had been stricken out of the case.
The prayer referred to in exception 72 was substantially given by the court, as follows: "A mere proof of a collision is not in itself sufficient to establish negligence on the part of the defendant, and unless you find by the preponderance of that evidence that this collision was caused by negligence of the defendant, you must answer this issue `No.'" It is prima facie negligence. Marcom v. R. R., 126 N.C. 200; Skipper v. Lumber Co., 158 N.C. 324.
The exceptions to refusals to charge as to certain paragraphs of the charge need not be discussed more fully.
The whole case turns upon the question whether there was negligence of the defendant, or of the plaintiff, or of his fellow-servants, in that a train order for train No. 81 to meet train No. 84 was written to pass at "Granite" or at "Grandy," or by the negligence of the operator at Norlina the word "Granite" was so written as to be mistaken for the word "Grandy." By reason of this mistake, however it was caused, a head-on collision took place, to the injury and damage of the plaintiff, as he alleges, but which the defendant denies. These were almost entirely controversies of fact, and while there were numerous exceptions as to the law, we do not perceive any errors in the conduct of the cause by the presiding judge which entitle the defendant to a new trial. There can be no benefit derived from a more minute discussion of the assignments of error.
This action was under the Federal statute which authorizes the (168) jury to abate the allowance of damages in proportion to the contributory negligence, if any, of the plaintiff. We cannot concur with the defendant's counsel that the judge erred in telling the jury that they would "deduct" a reasonable amount for contributory negligence instead of saying that the damages would be "diminished" on account of the contributory negligence. This, it seems to us, is a distinction without a difference, and a jury of twelve men would not know the difference between the two, if there is any beyond a metaphysical distinction. It is true, the act of Congress and the decisions of the Court use the word "diminish," but when one thing is deducted from another the larger amount is diminished to that extent. His Honor went further, and charged that the amount deducted must be the equivalent of contributory negligence.
The defendant placed emphasis on its contention that the plaintiff suffered from locomotor ataxia and that this disease could not have been caused by an injury received in the collision. The evidence of the experts conflicted on this question. Under the present system of summoning experts, they are selected like witnesses to the fact because it is ascertained before hand that their testimony will be favorable to the side that summons them. It has long been suggested by leading members of both the legal and medical professions that the method of summoning expert witnesses should be radically changed, and that they should be the "witnesses of the law," and not of either party. There is a strong opinion that experts should not be summoned in any case, civil or criminal, except upon an order made by the judge on motion and notice to the opposite side and upon a finding of the judge that it is expedient that such experts should be summoned, and thereupon the judge shall fix the number, not exceeding three, and shall select the experts and fix their compensation, with a provision that no other experts shall be examined on the trial and they shall receive no other compensation.
This is a matter, however, for consideration by the General Assembly.
Probably the weight of medical opinion is that this disease is never traumatic, but is always produced by one disease (syphilis). But there are those who assert that it is traumatic, that is, produced by an injury, and others still who, admitting the single cause stated, say that it may be accelerated or intensified by an injury. The jury held with one or the other or possibly both of the latter theories. We have no means of determining which set of experts were correct, and the matters was one of fact for decision by the jury.
This cause was very fully and ably discussed before us, as it was also, from the record, before the judge and jury in the trial court. After (169) a careful consideration of all the exceptions and the arguments thereon we find no reversible error which would entitle the defendant to a new trial. Nor are there any propositions of law whose more elaborate discussion would be of benefit in other cases of like nature. The trial turns almost necessarily, as above stated, upon two issues of fact, i.e., whether and to what extent the negligence of the plaintiff, if any, contributed to the collision, and, further, whether the physical injury of which he complained was caused by said collision or was due to previous disease. The instructions of his Honor upon these two propositions contain nothing which requires elaborate discussion.
If there was any error, it was against the plaintiff, in his Honor's intimation that if the negligence of the plaintiff was equal to the negligence of the defendant he could recover nothing; whereas in such case the plaintiff would be entitled to the full amount of damages, less an allowance of one-half to be deducted on account of his contributory negligence. Or, as the defendant contends, the amount of such damages sustained by the plaintiff, if any, in the wreck should be "diminished" by one-half on account of the contributory negligence of the plaintiff, if it equaled the negligence of the defendant. The charge of the court on this point seems to have been partially if not completely cured by its further instruction. Of this instruction the defendant cannot complain and the plaintiff is not appealing.
No error.