The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-06-08

defective tender. by remaining in the en-
ployment of the defendant the statute
of 1897, chapter Sc, has solved that ues-
tion and relieved the plaintiff from the
burden of assuming the risk of such de-
feet if it was on him before.
In putting this construction upon the
Act of 1897, it must not be understood
that the plaintiff is relieved by this Act
or the construction We have put upon It,
from the responsibility of his own negli-
gence. But, as we have said, the principal
battle in this case was as to the assump-
ton of risk, and it was ably conducted
on both sides-barring the statute OF 1897
and was ably conducted by the learned
judge VINO presided at the trial.
The greater part of the record, con-
sisting Of prayers for instruction and the
judges charge, is predicated upon the
first issue, the assumption CT risk, which
are eliminated by the view we have taken
of the case. This being so, there is but
little more for US to do. The prayers of
the defendant, mainly, if not all of them,
are addressed to the assumption of risk,
them, after taking this view of the Act
of 1897.
The defendants fifty prayer for in
structions was addressed to the PLAINTIFFS
using the drain pipe as grab iron This
prayer it seems the court gave, but
added the following: "The drain pipe
was not put there for a grab IRON and
there is no negligence imputed to the de-
PENDANT by reason of the weak condition
of the drain pipe, but the question is left
for the jury to say, upon the second issue,
whether or not the plaintiff was negligent
in taking hold of it, and whether he acted
as prudent man in taking hold of it.
That question is left with the jury upon
the second issue" This addition is as
signed as error, but we see none. The
prayer must have been addressed to the
second issue, though it does not so state,
and we see no error in referring the
question to the jury.
AS we understand, the question of pru
dence, and the ideal prudent man, are al
ways a matter for the jury This seems
to have been the ground of the eXcep
tiCn, that the court did not decide the
question instead of referring it to the
jury.
There is one other exception that we
think necessary to notice, and that is
the measure of damages. AS TO this, it
seems to us that it would have been
proper for the court to have explained
more fully the rule as to the measure of
damages, or the manner of ascertaining
them; especially as it seems 10 us that
an improper rule had been insisted upon
in the closing argument of the plaintiffs
counsel. But we see no intrinsic error
in what the court did charge-that the
jury should give the plaintiff 1.-The pres
ent cash value" of his injury, taking into
consideration pain and mental suffering
not allowing anything as a punishment,
or punitive damages. The defendant cites
but one authority to sustain it's assign
ment of error as to instructions upon the
question of damages-Pickett VS.. Railroad
III n. c.. 616-and we do not think it sus-
tains the defendants contention. That
case is as to d prayer which the court
held to be erroneous, but in passing upon
the prayer the court suggest almost the
exact language used by the court in this
case as a proper instruction. 1t was con-
tended before us in the argument that
the jury found their verdict upon the
erroneous rule laid down by defendants
counsel but we have no means, as court,
of knowing that this contention is true,
the plaintiff is still living. The verdict
does not show that the jury were so goV-
erned in finding their verdict 1t is far
more that the simple calculation of time
of expectancy, by the plaintiffs yearly
earnings But they were instructed that
they might give the plaintiff damages for
pain, suffering, etc. This was not error,
and we have no means of knowing how
much they allowed for this. and how
much they allowed for his earnings. There
may have been error in the manner in
which the jury estimated the damages.
But if there is we cannot know it, nor
does the record to which we are confined,
! disclose the error.
| Upon the view of the case we have
| taken the judgment must be affirmed.
| Cook, Justice, dissents.
| Montgomery, j., dissents