Lassiter v. Seaboard Air Line Railway
88 S.E. 335
N.C.
1916
Check Treatment
'Walker., J.,

after stating the case: We do not think that the charge was a sufficient explanation of the law arising upon the evidence, as required by statute, Revisal, sec. 535. There was no statement to the jury as to what would constitute negligence under the circumstances or as to what in law would be considered as the proximate cause of an injury. The jury were told only that if the one engine “butted” against the other and injured the plaintiff, they would answer the first issue “Yes,” that is, that there was not only negligence, but that it was the proximate cause of the injury, for both questions were involved in the issue. Fry v. R. R., 159 N. C., 357; McNeill v. R. R., 167 N. C., 390; Treadwell v. R. R., 169 N. C., at 701. It is possible that an engine, while a coupling is being made, might butt against the other engine without it being the result of a negligent act on the part of those having control of the moving engine. A coupling produces more or less of a jar, and the engine on which the plaintiff had been shoveling the coal might have been shaken or jarred considerably without there being anything more than the making of an ordinary coupling, in a careful and projier manner. It was for the jury to say whether there was negligence or not. There was evidence of an admission by plaintiff that he was hurt by falling from a moving engine. This he denied, but the conflict in this respect was for the jury to settle. The jury might have inferred that the engine had come up the track for the purpose of being coupled to the other engine which was to be moved to some other place, and that it was not merely a careless and unnecessary butting of the engine *287 against the other for no purpose whatever. If the jury had found that ■one of the engines had butted against the tender of the other, this would be some evidence on the question of negligence, but was not necessarily negligence by itself, so as to justify a charge to that effect. It would depend upon the degree of violence with which it was done and upon other circumstances. The jury should have been instructed to find whether there was a violent jar, without any warning to plaintiff, and whether the injury was caused as he testified, his credibility being a question for the jury to consider. There was evidence of negligence, but it was not properly submitted to the jury. They should have been so instructed that they could have found whether or not the jar, under the circumstances, was caused by a negligent act, and not restricted to a single fact, which, standing alone, did not amount to negligence.

We cannot approve an instruction, “that one witness corroborates another,” as this is a question of fact to be decided by the jury. We said in Withers v. Lane, 144 N. C., at page 189 : “Whether the plaintiff had in fact been contradicted or not was a question for the jury to decide, and not for the court, which might very properly have called attention to the apparent conflict in the testimony, and have explained to the jury the nature of the different kinds of evidence, and it may have been within the judge’s province to have stated what the evidence on either side tended to prove, but he could not tell the jury what it actually did prove.” The principle is the same in both cases. An intimation that one witness corroborates another is as harmful in its effect upon the jury as one that he contradicts another. One is practically the converse of the other. The approved definition of the verb “corroborate” is “(1) To make strong or to give additional strength to; to strengthen. (2) To make more certain; to confirm; to strengthen.” Under any of these definitions, whether we accept the primary or the secondary meaning, the instruction, in effect, told the jury that Leo Black’s testimony strengthened or rendered more certain that of the plaintiff, whereas it is the province of the jury to judge of the weight of testimony and as to the effect of the testimony of one witness upon that of another. The reference to the testimony of Leo Black, in connection with the other instruction, rendered the latter more harmful. The tendency of certain testimony to corroborate a witness, and the fact of corroboration, are considered, in law, as two different things. It is for the jury and not for the judge to say how the testimony of a witness is affected by other testimony. Swan v. Carawan, 168 N. C., 472. The credibility of witnesses, the weight and sufficiency of testimony, are matters peculiarly within the province of the jury to consider and pass upon.

We are of the opinion that the charge in the respects indicated was not an adequate one, and that the judge inadvertently expressed an *288 opinion upon the weight of the testimony. There are other questions, but they need not be considered, except the motion to nonsuit, which was properly overruled.

New trial.