160 N.C. 47 | N.C. | 1912
Admitting, for the purposes of this appeal, that the defendant was negligent, the controversy on the first issue was reduced to the question of proximate cause, and on the second to the inquiry whether the plaintiff was negligent, and, if so, was this the real cause of death.
If it was dangerous and negligent to require the plaintiff’s intestate to pass over a skeleton car while in motion, or to use the link and pin coupler, or to lean over between the cars to uncouple, those facts, while evidence of negligence, were of the past, and could not have been the proximate cause of death, provided the intestate passed over the car, leaned over and completed the uncoupling in safety, and, after doing so, unnecessarily placed himself in a dangerous position on the bolster, when there was another safe way for him to leave the car.
It became, then, most important to ascertain the position of the plaintiff at the time he fell, and if the defendant was negligent and the intestate was also negligent, in unnecessarily going into a place of danger, both concurring in causing death, the negligence of the plaintiff was proximate, and it was proper to answer the first issue in the negative and the second in the affirmative. Pinnix v. Durham, 130 N. C., 360; Curtis v. R. R., 130 N. C., 440; Harvell v. Lumber Co., 154 N. C., 262.
In the last case cited, the Court states the rule as follows: “If, however, the plaintiff was negligent, and this negligence caused him to stumble and fall, he could not recover, although the defendant was also negligent, because this would present a case of concurrent negligence, and it is well settled that when the plaintiff and defendant are negligent, and the negligence of both concur and continue to the time of the injury, the negligence of the defendant is not in the legal sense proximate.”
It follows, therefore, that there was a phase of tbe evidence which supported tbe findings of tbe jury, and that tbe verdict is not condemned as inconsistent, which rests “upon the ground that there are two responses to different issues, one of which would support a decree for the defendant, while the other would entitle the plaintiff to recover.” Stern v. Benbow, 151 N. C., 463.
In Baker v. R. R., 118 N. C., 1017, the jury answered the first and second issues “Yes,” and awarded the plaintiff $1,000, and the Court held the finding upon the second issue determinative, and that the defendant was entitled to judgment, and in Harris v. R. R., 132 N. C., 162, the three issues of negligence, contributory negligence, the last clear chance, were answered “Yes” and damages were awarded, and upon these findings a judgment in favor of the plaintiff was sustained.
The jury, in the case before us, has answered the first issue “No” and the second issue “Yes,” and as we have seen that these findings are supported by the evidence, and are not inconsistent, and as the plaintiff cannot recover as long as the answer to the second issue stands, it is not necessary for us to consider the exceptions (about thirty in number) arising upon the first issue, if no error is shown affecting the second issue. Ginsberg v. Leach, 111 N. C., 15; Allen v. McLendon, 113 N. C., 325.
There are several exceptions bearing on the second issue.
The first is to permitting a witness for the defendant to say there was a safer way to get off the car than by walking on the bolster. If this was erroneous, it is not prejudicial, because, on cross-examination, the witness was asked substantially the same question and gave the same answer.
Tbe first prayer for instruction was properly denied, because it relates to assumption of risk, as to which no issue was submitted to tbe jury, and it also appears that bis Honor substantially instructed tbe jury as to tbe degree of care required of tbe intestate, as the plaintiff requested, when be said: “While tbe law requires an employer to furnish a reasonably safe place for its employee to work, and reasonably safe appliances with which to do bis work, it requires of tbe employee, tbe servant, to go about bis work in a reasonably prudent manner. While be may trust that bis employer or master has furnished a reasonably safe place and appliances in which to do tbe work, provided tbe danger is not so obvious that a reasonably prudent man would see that in doing tbe work be was in greater danger of getting hurt than not getting hurt, be may go about tbe work, but be is required to exercise reasonable caution and prudence himself, because it is bis duty to take notice of tbe conditions which surround him, and be must exercise tbe care of a reasonably prudent man. This tbe defendant contends tbe plaintiff did not do, and that be was careless in getting up and getting on tbe bolster, and not careful to take care of himself so as to stoop down as be might have stooped down by exercising reasonable care.”
Tbe material part of tbe second prayer is also covered by tbe above excerpt from tbe charge, but tbe instruction is also objectionable, upon tbe ground that it is predicated upon tbe theory that tbe intestate was killed while uncoupling tbe car, while tbe contributory negligence alleged and relied on was that tbe uncoupling bad been finished, and that be negligently stood on tbe bolster when it was unnecessary for him to do so.
His Honor stated distinctly to tbe jury that tbe contention of tbe defendant was that tbe intestate was negligent in getting up and standing on tbe bolster, which was not a method employed by tbe defendant. In other words, tbe plaintiff said that bis intestate was required to pass across a skeleton car while in motion, to sit on a beam, to lean over and uncouple, and that
The other exceptions on this issue are to parts of the charge which follow approved precedents.
We have examined the exceptions to the first issue and do not intimate that any were well taken, but as we find no error on the second issue, which determines the appeal, it is not necessary to discuss them.
No error.