Batts v. Home Telephone & Telegraph Co.

Stacy, J.

The defendant’s main exception, as stressed on the argument and in its brief, is the one directed to the refusal of the court to grant its motion for judgment as of nonsuit, made first at the close of 'the plaintiff’s evidence, and renewed at the close of all the evidence.

There was evidence tending to support the jury’s finding on the first three issues; and this, we think, was sufficient to import liability under authority of Campbell v. Boyd, 88 N. C., 131 ;

Monroe v. R. R., 151 N. C., 374 . See, also, 20 R. C. L., 65, where the rule applicable is stated as follows:

“Where the owner or occupant of premises, with knowledge and for a long period of time, permits the public to use the premises without objection, for the purpose of traveling across the same on a well-established and safe path or highway, he cannot, without giving notice, render the premises unsafe to the injury of those who have used such highway, and have no notice of the changed condition, without being responsible for the resulting injury.” See, also, Morrison v. Carpenter, Anno. Cas., 1915-D, 319, and note.

But we think there was error in the charge on the issue of damages which entitles the defendant to a new trial on this issue. His Honor instructed the jury as follows:

“In determining this you will award to plaintiff, not the total amount that he could have made, if you find what he could have made, before he was injured, but the present cash value of his net income, that is to say, what he would have received after paying his own personal expenses.”

Here the court, inadvertently and for the moment, no doubt, apparently fell into the error of confusing the rule with respect to the measure of damages in actions for wrongful death with that in actions for personal injuries resulting only in a diminution of the plaintiff’s earning capacity.

*122 -A correct statement of the rule for the admeasurement of. damages, applicable to the present case, will be found in Ledford v. Lumber Co., 183 N. C., 614 ;

Johnson v. R. R., 163 N. C., 451 , and it would only be a matter of repetition to restate it here.

For the error, as indicated, there must be a new trial on the issue of damages. But the new trial will be limited to this issue, as we find no error in respect to the other issues.

Pickelt v. R. R., 117 N. C., 616 .

Partial new trial.