
    FRANK H. MARSHALL v. INTERSTATE TELEPHONE AND TELEGRAPH COMPANY and DURHAM TRACTION COMPANY.
    (Filed 3 June, 1921.)
    Appeal and Error — Objections and Exceptions — Negligence—Evidence Admitted Without Objection — Questions for Jury — Trials.
    The principle upon which an exception to the admission of evidence is untenable when such has theretofore been admitted without objection, has no application when the testimony excepted to is incompetent as an invasion of the province of the jury to ascertain a fact at issue as to the defendant’s actionable negligence, and that formerly admitted relates to notice of defendant of the conditions existing at the time. (Stacy, J., on petition to rehear.)
    Petition by plaintiff to rebear, case decided at tbis term, ante, p. 292.
    
      Brawley & Gantt for petitioner.
    
    
      Bryant <£ Brogden, W. L. Foushee for Traction Company.
    
    
      Fuller, Beade & Fuller for Telephone Company.
    
   Stagy, J.

Tbis case was before tbe Court at tbe present term, and a new trial awarded for error in tbe admission of incompetent opinion evidence. Tbe plaintiff files a petition to rebear and asks tbat tbe former decision be reversed and tbat tbe judgment of tbe Superior Court on tbe verdict be affirmed.

It was alleged in tbe complaint, as one of tbe main grounds of actionable negligence, and denied in tbe answer, tbat tbe defendants bad failed to furnish tbe plaintiff, an employee, a reasonably safe place to 'work. Chester Whitaker, a witness for tbe plaintiff, who bad examined tbe place on Tickers Avenue where tbe injury occurred, was permitted to testify, over objection, tbat in bis opinion tbe conditions, as be found them some thirty or forty minutes after tbe injury, were not safe. This was tbe very question tbe jury was to determine. Tbe plaintiff now says tbat tbe admission of tbis evidence should not be held for reversible or prejudicial error because tbe same witness, previously and without objection, bad been allowed to testify as follows:

“I bad notified tbe telephone company and tbe traction company about tbe general condition where tbe two lines occupy tbe same side of tbe street. There are several conditions like tbat in tbe city. It was these tbat I called their attention to. I have no record of having mentioned Vickers Avenue or any other place, but tbe general condition. I just notified them about tbe condition where they both occupied tbe same side of tbe street. Where tbe two systems are brought closer together than is safe. I have a copy of a letter tbat specifies some location, but Nickers Avenue is not on it. I told Mr. Conrad about it. Mr. Conrad was superintendent or manager.”

It bas been beld witb us, in a number of cases, tbat where tbe testimony of a witness has been given without objection a subsequent exception to the same evidence will not avail. Beaver v. Fetter, 176 N. C., 335; Tillett v. R. R., 166 N. C., 520; Smith v. R. R., 163 N. C., 146; Young v. R. R., 157 N. C., 78; Proctor v. Finley, 119 N. C., 541.

But it will be observed that,, in the instant case, the previous testimony of the witness Whitaker is not the same as that to which the defendants objected and excepted. It was competent for him to say that he had notified the defendants of certain conditions, which he considered unsafe, as tending to show that the matters had been brought to the attention and knowledge of the defendants. The hurtful part of his evidence was the opinion he gave to the jury, under oath, and not what he had said to the defendants out of court and on some other occasion.

In passing, it may be noted that the position now urged by the plaintiff was omitted in his brief when the ease was argued on the original hearing. All material exceptions, not abandoned by appellants, should be considered with care, and counsel should call the Court’s attention to such portions 'of the record as tend to sustain the validity of the trial.

After a further investigation and examination of the case, I think the plaintiff’s petition to rehear should be denied, and it is so ordered.

Petition denied.  