#### J. W. SEARS v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 15 October, 1919.)

1. Instructions — Contentions — Appeal and Error — Objections and Exceptions.

Objection tbat tbe trial judge stated tbe contentions of tbe adverse party more fully tban those of tbe appellant to bis prejudice should be made at tbe time by calling tbe attention of tbe judge to tbe omissions claimed tbat be bad made, and comes too late after verdict.

2. Instructions — Requests—Additional Instructions — Appeal and Error.

Other instructions tban those given by tbe trial judge should be especially requested, and exceptions taken to their refusal to be available on appeal.

3. Instructions — Inadequacy—Statutes.

Exceptions in this case tbat the charge of tbe trial judge was inade- , quate, and not in compliance with Rev., sec. 535, are not only untenable but too general. Blalce v. Smith, 163 N. C., 274, cited and distinguished.

ActioN for damage tried before Galv&rt, J., and a jury, at March Term, 1919, of Pendes.

Tbe plaintiff alleged tbat be bad recently been married; tbat be bad been for a short while at tbe seashore with bis bride, and started on bis. first trip to visit bis parents after tbe marriage; tbat be arrived a little late at tbe station in Wilmington, N. C.,'but in time to get bis ticket and to get on tbe train; tbat bis wife bad gotten on and tbat be was. getting on, with suitcases and other impedimenta in bis bands, when the conductor abused him and pushed him off tbe train, and be fell upon tbe ground and was injured; tbat be was left behind, and suffered excruciating mental agony for fear bis wife should be grieved at bis failure-to accompany her. ■ He admitted tbat bis people met her at tbe proper station, Watba, N. 0., with a conveyance and took her out borne. He-says tbat it cost him $1.50 for hotel accommodation, and tbat be went borne tbe next morning. Tbe conductor told him tbat be was on the-wrong train and shoved him.off rudely.

Tbe defendant denied these allegations, and especially denied tbat the-conductor or any other employee of tbe defendant used abusive language-to tbe plaintiff and pushed him off tbe train.

Both sides offered evidence, which appears in full in tbe record. Issues were submitted to tbe jury, and tbe jury answered in favor of the-plaintiff, and assessed bis damages at $500. Counsel for defendant moved to set aside tbe verdict upon tbe ground tbat tbe damages were-grossly excessive, which was denied. Counsel then moved for a new trial for error in tbe charge. Tbe record discloses tbat both sides offered considerable testimony in support of their respective contentions. Plain*286tiff’s counsel argued strongly, persuasively and successfully, as defendant alleges, but tbis be bad a right to do, and it was bis duty, in loyalty to bis client, that it should be done. It is not contended that be exceeded the'limit of fair and legitimate debate. Defendant’s counsel urged that plaintiff’s statement of the facts was unreasonable; that unless there was some animus on the part of the employees against him they could not, and would not, have shoved him off the car, especially if be bad gotten on it; that the transaction bad occurred several years previously and that plaintiff bad forgotten the details; that the truth is that plaintiff, ’ as be himself admits, bad arrived late and bad to go to the baggage room to get bis luggage, which bad been brought up from the beach, and that if bis story bad been true bis wife, who was also called as a witness, would have testified to the act of violence. Defendant also argued that it bad called both the conductor and the flagman of the train, which plaintiff alleges he took, and both of them denied plaintiff’s statement. Defendant further argued that Miss Newton was a' friend and neighbor of the plaintiff; that she bad seen the plaintiff the morning after be bad gotten left, and that she ought to be believed when she stated that the plaintiff bad told her the next day that the reason be bad gotten left was that be was late and bad to go to the baggage room for bis luggage, and that the burden of proof was upon the plaintiff and that it • bad not been sustained.

There was a verdict for plaintiff, as above stated, and judgment. Defendant appealed.

O. E. McMullen for plaintiff.

Rountree & Davis for defendant.

Walker, J".,

after stating the case: It is assigned as error that the court did not summarize the defendant’s contentions but stated the plaintiff’s rather fully, and that the court laid special stress upon the issue as to damages, which led the jury to believe that there should be a recovery. We state the exceptions in defendant’s own words, as they appear in its brief:

“The defendant assigns as error the charge of the court, and particularly the following:

“ fOn the other band, the defendant contends that you cannot so find from the evidence and by the greater weight of it. The defendant contends that you should find from the evidence that the plaintiff and bis wife were late and that be put bis wife on board the train and then went ■ back to get tickets and baggage, and that before be returned to the train that the train bad left.’

*287“Tbe defendant submits tbat tbis charge of tbe court is inadequate and not in compliance witb tbe statute, section 535, wbicb is as follows:

“ ‘He shall state in a plain and correct manner tbe evidence given in tbe ease and declare and explain tbe law arising thereon.’

“Tbe only question in tbe ease then is whether tbe charge of tbe court is sufficient, under Eev., sec. 535, tbe last clause of wbicb reads:

“ ‘But be shall state in a plain and correct manner tbe evidence given in the case, and declare and explain tbe law arising thereon.’

“We insist tbat there was an utter failure of tbe court to comply witb tbat provision of tbe statute.”

We are not persuaded tbat tbe criticism of tbe charge in tbe respect indicated is justified, but if it is, we have held repeatedly tbat such objections must be taken promptly or at tbe proper time, so tbat tbe judge may have opportunity to make tbe needed correction, if be bad misstated tbe contention of either party. In tbe absence of any such action on tbe part of tbe appellant at tbe trial we must assume tbat it was satisfied witb what tbe judge bad done. Mfg. Co. v. Building Co., 177 N. C., 103; Alexander v. Cedar Works, id., 138.

But we do not think tbat in tbis case tbe statement of tbe plaintiff’s contentions and tbe statement of tbe defendant’s were so unequal as to bring tbe case within tbe principle of Jarrett v. Trunk Co., 144 N. C., 299, and Lea v. Utilities Co., 176 N. C., 511, 514. Tbe defendant’s contentions were sufficiently stated, so far as appears, and especially is tbis true in tbe absence of any suggestion at tbe time from tbe defendant tbat it was not so. We have no doubt tbat if tbe matter bad been brought to tbe judge’s attention be would have added any other contention of defendant wbicb bad been inadvertently omitted. Tbe invariable rule is tbat if other instructions than those given are desired there must be a special request for them. Simmons v. Davenport, 140 N. C., 407; Davis v. Keen, 142 N. C., at p. 502; Ives v. R. R., 142 N. C., 131; Turrentine v. Wilmington, 136 N. C., 313; S. v. Kinsauls, 126 N. C., 1097. We said in Davis v. Keen, supra: “Any omission to state tbe evidence or to charge in any particular way should be called to tbe attention of tbe court before verdict, so tbat tbe judge may have opportunity to correct tbe oversight. A party cannot be silent under such circumstances and, after availing himself of tbe chance to win a verdict, raise an objection afterward. He is too late. His silence will be adjudged a waiver of bis right to object.” The defendant did not ask for any additional statement of its contentions, but elected to abide by the one made by tbe court, and there was no complaint until tbe verdict bad been returned. Tbis is too late. Silence seems to give consent. Tbe case of Blake v. Smith, 163 N. C., 274, is not an authority in favor of defendant’s position. There tbe judge only said to tbe jury, “Take tbe *288case and settle it, as between man and man.” There was no attempt to instruct the jury, but it was simply leaving it to them to decide the issues “as between man and man,” without any rule or principle at all to assist them. But in the opinion it was said by the Court: “The manner in which the judge is to state the law and evidence for the assistance of the jury must necessarily be left, to a great extent, to his sound discretion and good sense.” And in S. v. Beard, 124 N. C., 811, the Court stated the same rule: “The manner in which the judge is to state the law and assist the jury to apply the law to the facts must be left, to a p great extent, to the good sense and sound judgment of the judge.” We cannot sustain the exception.

No error.