There was error on the part of the court in leaving the question of ordinary care to be determined by the jury, upon (641) no other instruction than that "ordinary care was such care as an ordinarily prudent man would have used in the protection of his own property." This is obnoxious to the ruling in Emry v. R. R.,109 N.C. 589" court="N.C." date_filed="1891-09-05" href="https://app.midpage.ai/document/emry-v--r-r-3673674?utm_source=webapp" opinion_id="3673674">109 N.C. 589; Knight v. R. R., 110 N.C. 58" court="N.C." date_filed="1892-02-05" href="https://app.midpage.ai/document/knight-v-albemarle--raleigh-railroad-3645595?utm_source=webapp" opinion_id="3645595">110 N.C. 58, and the long line of decisions cited in the opinions in those cases. The well-established practice in this State is, that "if the facts are undisputed, it is for the court to decide; if they are controverted, or if the inferences, to be drawn from them are doubtful, the jury must find such facts or inferences, and the court must instruct them as to the law applicable to the same." Emry's case, supra.
There was also error in so much of the charge as states that the burden was on the defendant to show that the property had not been lost or destroyed by reason of the defendant's negligence. It very clearly appears that the defendant's liability as a common carrier had ceased when the property was destroyed by fire, and that it was liable only as a warehouseman, for want of ordinary care. Hilliard v. R. R., 51 N.C. 343" court="N.C." date_filed="1859-06-05" href="https://app.midpage.ai/document/hilliard-v-wilmington--weldon-rail-road-3654559?utm_source=webapp" opinion_id="3654559">51 N.C. 343;Chalk v. R. R., 85 N.C. 423" court="N.C." date_filed="1881-10-05" href="https://app.midpage.ai/document/chalk-v-charlotte-columbia--augusta-railroad-3654809?utm_source=webapp" opinion_id="3654809">85 N.C. 423.
"The rules of law require, in an action for damages resulting from the negligence of the defendant, or his agents and employees while engaged in his service, that the plaintiff shall prove the negligence as a part of his case" (Doggett v. R. R., 81 N.C. 461), and we see nothing in the record to show that the present case falls within any of the exceptions to this general principle.
New trial.
Cited: Young v. R. R., 116 N.C. 936; Chesson v. Lumber Co., 118 N.C. 68;Dunn v. R. R., 124 N.C. 260; Kindley v. R. R., 151 N.C. 213.
(642)