
    BRYAN v. RAILROAD CO.
    (Filed March 29, 1904).
    
      INSTRUCTIONS — Evidence—Trial.
    The trial judge should not give instructions not supported by evidence.
    Douglas, J., dissenting.
    ActioN by W. B. Bryan against the Southern Railroad Company, heard by Judge B. F. Long and a jury, at May Term, 1903, of the Superior Court of Catawba County.
    Erom a judgment for the plaintiff the defendant appealed.
    
      Thos. M. Hufham and Self & Whitener, for the plaintiff.
    
      S. J. Ervin and A. B. Andrews, Jr., for the defendant.
   MoNtgomeby, J.

The plaintiff, an employee of the defendant company at the time when he was hurt, was engaged with a squad of hands under a boss in loading a box car with heavy timber. In his complaint, as it was first drawn, the negligence alleged was that the defendant was engaged in the work with an insufficient force of hands. The complaint was amended, after the answer was put in, as follows: “That the defendant company was negligent in that said Whitley, foreman and boss of defendant’s force of laborers as aforesaid, negligently ordered said Sigman to bold said stringer or jiieee of timber on said car in an unsafe manner with a stick slanting downward from the car to his (said Sigman’s) shoulder which was dangerous to plaintiff and done without notice to him. The defendant .excepted to one of his Honor’s instructions to the jury which was as follows: “If the jury should find that Whitley and one of the hands, without notice to plaintiff, quit the work at a critical juncture in tbe lifting and placing and thus prevented tbe completion of tbe lifting, and left tbe plaintiff and bis associates at tbe work in a perilous position, from wbicb plaintiff could not, by reasonable care, extricate bimself, and you find tbat tbis negligence of Whitley was tbe proximate cause of tbe injury, you will answer tbe first issue (as to tbe defendant’s negligence) “Yes.”

There was no evidence to support such an instruction.

Tbe exception to tbe rule as to tbe measure of damages laid down by bis Honor must also be sustained. His Honor instructed tbe jury: “If tbe plaintiff is entitled to recover be is entitled to have a reasonable satisfaction for tbe loss of both bodily and mental powers.” The exception was upon tbe ground tbat there was no evidence of any loss of mental power. Hpon a careful inspection of tbe evidence we find tbat there is none to that effect. Smith v. Railroad, 126 N. C., 112; Wilkie v. Railroad, 128 N. C., 113.

New Trial.

Douglas, J., dissents.  