#### FILMORE HOLDER v. GIANT LUMBER COMPANY.

(Filed 20 November, 1912.)

1. Evidence — Nonsuit—Instructions—Appeal and Error — Practice.

Tbe question of tbe sufficiency of the evidence to submit the case’ to the jury can only be considered on appeal by an exception to the refusal of the trial court to grant a motion of nonsuit o,r to give a proper prayer for instruction, to that effect.

2: Instructions — Time of Filing — Court’s Discretion — Appeal and Error.

When it appears that the trial judge has refused to accept prayers ■ for special instructions tendered him after the commencement of the argument, and no permission to file them at that time appears to have been given, his refusal to consider the special requests is within his reasonable discretion, and his action will not be reviewed on appeal. Oracldoclc v. Barnes, 142 N. C., 89, cited and approved.

3. Witnesses, Expert — Hypothetical Questions — Questions for Jury —Appeal and Error.

Hypothetical questions asked of an expert witness, a physician, in this case, as to the effect of the wound upon the plaintiff’s knee alleged to have been negligently inflicted by the defendant, and the cause of the suffering alleged to have been thereby endured, are held to be proper, and not trespassing upon the province of the jury.

4. Instructions — Master and Servant — Duty of Master — Safe Tools and Appliances.

Instructions in this case relating to the duty of the master to furnish his servant proper tools and appliances with which to do his work, are sustained, and Mercer v. R. R., 154 N C., 400, cited and applied.

Appeal by defendant from Lyon, J., at August Term, 1912, of WlLKES.

Civil action. Tbe following issues were submitted to tbe jury:

1. Was tbe plaintiff injured by tbe negligence of tbe defendant, as alleged in tbe complaint? Answer: Yes.

2. Did tbe plaintiff, by bis own negligence, contribute to bis own injury? Answer: No.

3. Wbat damage is tbe plaintiff entitled to recover? Answer: $800.

*178From tbe judgment rendered, tbe defendant appeals.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Justice Brown.

Haclcett & Gilreath for plaintiff.

W. W. Barber and Finley & Ilenchren for defendant.

BbowN, J.

Tbe principal question discussed on tbe argument of tbis case by tbe learned counsel for tbe defendant is not presented in sucb a manner tbat we can consider it. As to wbetber there is sufficient evidence of negligence to justify tbe submission of tbe question to tbe, jury can only be presented by a motion to nonsuit, or by a proper prayer for instruction.

No motion to nonsuit appears to have been made, and we are debarred from considering tbe prayers for instruction because of tbe objection of tbe plaintiff tbat tbey were not filed witbin tbe time required by tbe statute.

After tbe argument commences it is well settled tbat counsel will not be permitted to file requests for special instructions without leave of tbe court, and no sucb leave appears to bave been given in tbis case, for tbe court declined to consider tbe prayers after tbey were banded up.

In Craddock v. Barnes it is said tbe time witbin which special instructions should be requested must be left to tbe sound discretion of tbe presiding judge, and tbis Court will be- slow to review tbe exercise of sucb discretion; but tbe judge must so order bis discretion as to afford tbe counsel a reasonable time to prepare and present their prayers. 142 N. C., 89; Biggs v. Gurganus, 152 N. C., 176.

Tbe assignments of error relating to tbe hypothetical questions asked Dr. Duncan, we think, are without merit. It is unnecessary to set out tbe questions themselves. Tbe opinion asked of tbe witness did not trespass at all upon tbe province of tbe jury. These questions only elicited from tbe physician bis opinion of tbe effect of tbe wound upon tbe knee, and also bis opinion upon tbe cause of tbe suffering alleged to bave been endured by tbe plaintiff. We think tbe hypothetical questions were framed correctly, according to the rule laid down in Summerlin v. R. R., 133 N. C., 551.

*179We do not think the assignments of error relating to the charge of the court can he sustained. His Honor seems to have followed the well settled decisions of this Court relating to the duty of the master to furnish proper tools and appliances to his servant. Mercer v. R. R., 154 N. C., 400, and cases cited.

Upon a review of the entire record, we find

No error.