Rogers ex rel. Rogers v. Freeman

Pee Oueiam.

We have read with care the record and assignments of error made by plaintiff. We do not think that they can be sustained. Taking the record as a whole, we think there is no prejudicial or reversible error. The court below in the charge recited the evidence, gave the *470 contentions fairly for both, sides, and charged the law applicable to the facts. The court fully set forth and defined burden of proof, negligence, and proximate cause. In fact, the charge, with additional instructions to the jury, comprises some 35 pages.

We think the exceptions and assignments of error to the charge and to the admission and exclusion of evidence were not so material, if error, that would amount to prejudicial or reversible error.

It is well settled in this jurisdiction that verdicts and judgments are not to be set aside for harmless error, or for mere error and no more. To accomplish this result, it must be made to appear not only that the ruling complained of is erroneous, but also that it is material and prejudicial, amounting to a denial of some substantial right.

It would be hard to find a more pathetic case — a boy going through life blind in both eyes, when once he could see. The brief and argument of plaintiff were clearly and forcefully set forth, but we cannot on the entire record hold that there was prejudicial or reversible error. The jury were the triers of the facts, and decided with defendant that the injury was not caused by the negligence of defendant.

Eor the reasons given, we find in the judgment of the court below Ho error.

Stacy, O. J., dissents.