Opinion
(Filed 18 October, 1916.)
Appeal and Error — Issues — Objections and Exceptions — Harmless Error.
Where the action to recover damages for the negligent killing of a mule has been submitted upon the three issues of negligence, contributory negligence, and amount of damage, a charge upon the second issue, answered "Yes," if erroneous, is not reversible error as to plaintiff, when the jury have answered the first "No," to which no exception was taken by him.
ACTION tried at June Term, 1916, of WAKE, before Connor, J., upon these issues:
Willis Smith for plaintiff.
John W. Hinsdale, Jr., for defendant.
1. Was the plaintiff's mule killed as a result of the negligence of defendant, as alleged in the complaint? Answer: "No."
2. If so, did plaintiff contribute by his own negligence to the cause of the death of the said mule? Answer: "Yes."
3. What sum, if any, is plaintiff entitled to recover of the defendant as damages? Answer: . . . . . . .
From the judgment rendered, plaintiff appealed.
The only assignment of error relating to the evidence is to that of George M. Harden, who testified as to the condition of the streets of Raleigh on the morning that the accident occurred, and it is without merit. The other assignments of error, six in number, all relate to the first issue referring to the alleged negligence of the defendant.
The said assignments are without merit. The charge is a clear and correct presentation of the well settled principles of law applicable to this case. But if the charge was in some respects erroneous, as contended by the plaintiff, it would not matter, for the jury found the second issue against the plaintiff, and there are no assignments of error as to the charge upon that issue.
No error.
Cited: Call v. Stroud, 232 N.C. 480 (c).
(848)