Lea v. Southern Public Utilities Co.
101 S.E. 19
N.C.
1919
Check Treatment
'Waiicbe, J.,

after stating tbe facts: Tbe burden was upon the plaintiff to satisfy tbe jury upon tbe first issue that tbe defendant was negligent, and that its negligence was the proximate cause of tbe injury to him. This was bis only burden. "When be bad established tbe defendant’s negligence as the proximate cause of bis injuries, tbe burden then shifted to the defendant, and it was required to prove, under tbe second issue, tbe plaintiff’s contributory negligence. When it has done that, the burden again shifts, but this time to tbe рlaintiff, and be must show that under tbe third issue, notwithstanding plaintiff’s negligence, tbe defendant could, by tbe exercise of ordinary care, have prevented tbe injury to him. Tbe first of tbe instructions given by tbe court violated this rule, because it placed tbe burden on tbe plaintiff upon tbe first issue to disprove bis own negligence, whereas, bis burden was to show merely tbe defendant’s negligence as tbe proximate cause of tbe injury. The burden thus placed on tbe plaintiff did not properly belong to him, and bis own negligence was not involved in tbe first issue, but only tbe defendant’s negligence, and tbe question whether it was tbe proximate cause of plaintiff’s injury. Tbe jury, under this instruction, could well have answered tbe first issue “No,” without considering tbe question really presented by it, namely, whether tbe defendant bad caused such injury by its negligence. But, even if tbe judge bad once properly instructed tbe jury on tbe first issue, this second instruction thereon would have been error, as being wrong in itself, and as leaving tbe jury in doubt as to tbe correct law. Tillett v. R. R., 115 N. C., 663; Williams v. Haid, 118 N. C., 481; Edwards v. R. R., 132 N. C., 99, at p. 101. The case of Peoples v. R. R., 137 N. C., 96, at p. 97, seems to be direсtly in point, as to the' incorrectness of this instruction. There tbe defendant requested tbe court to charge, in substance, that it was tbe duty of tbe plaintiff’s ‍​​​​‌​​​​​​​​‌​‌​‌‌​‌‌​​‌​‌‌‌‌​​‌​​‌​​​‌​​​​​​‌​‍intestate to keep a sharp lookout for tbe string of cars, which was bеing “kicked” along one of tbe tracks in tbe defendant’s yards, and that if be failed to do so, tbe answer to tbe first issue should be “No.” This Court, in reviewing tbe case, said: “This was properly refused, because tbe prayer assumed as a fаct that intestate’s failure to keep a sharp lookout was tbe proximate cause of tbe injury. Besidеs, this prayer was upon tbe first issue and seeks to throw upon tbe plaintiff tbe burden of proving, not that tbe defendant was guilty of negligence, but that tbe intestate was not guilty of contributory negligence. Such instruction would have been clеarly erroneous, if given, citing Fulp v. R. R., 120 N. C., 525, which sustains its ruling. See, also, Curtis v. R. R., 130 N. C., 437; Cox v. R. R., 123 N. C., 604; Graves v. R. R., *512 136 N. C., 9. It was said in Cox v. R. R., supra: “Each, issue bears its own burden, and it rarely happens that the burden of all the issues rests uрon the same party, for in cases of negligence, like the present, it changes with each successive step, it being necessary for the plaintiff to prove the negligence of the defendant; the defendant, the contributory negligence of the plaintiff; and, again, for the plaintiff to show the last clear chance оf the defendant, if that issue becomes material. Each of these issues depends upon the one preceding. The plaintiff must first prove that he was injured by the negligence of the defendant. If he fails to prove it, that is an еnd of the case. The defendant is not required ‍​​​​‌​​​​​​​​‌​‌​‌‌​‌‌​​‌​‌‌‌‌​​‌​​‌​​​‌​​​​​​‌​‍to prove contributory negligence unless there is negligencе on the part of the defendant.” And we may add that plaintiff is not required, on the first issue, to show the absence of nеgligence on his part, the full burden of showing his negligence resting upon the defendant under the second issue, and by the stаtute, Laws 1887, ch. 33 (Rev., 483). That law provides that contributory negligence shall be specially pleaded as a defense, “and proved by the defendant on the trial.” It will be observed that the judge directed the jury to answer the first issue “No,” upon a finding that plaintiff had been negligent in the respect mentioned by him. This was making the answer to the first issue depend uрon the plaintiff’s negligence instead of upon that of the defendant, which amounted not only to placing the burden improperly, but also inserted in an instruction on the first issue matter not germane to it, and not pertinent to that issue, but to be considered only on the second issue.

There was evidence in this case sufficient ‍​​​​‌​​​​​​​​‌​‌​‌‌​‌‌​​‌​‌‌‌‌​​‌​​‌​​​‌​​​​​​‌​‍to carry it to thе jury. Wheeler v. Gibbon, 126 N. C., 811; Moore v. R. R., 128 N. C., 457; Norman v. R. R., 167 N. C., 543; Ingle v. Power Co., 172 N. C., 751; Smith v. Electric Co., 173 N. C., 489; Sparger v. Public Service Co., 174 N. C., 776. It was for the jury to decide, under proper instructions from the court, which party’s negligence was the proximate cause of the injury, with the burden upon the plaintiff as to the first and third issues, and - upon the defendant as to the second. In Stewart v. R. R., 137 N. C., 690, 691, after stating that the statute requires the defendant to allege and prove contributory negligence, the Court said: ‍​​​​‌​​​​​​​​‌​‌​‌‌​‌‌​​‌​‌‌‌‌​​‌​​‌​​​‌​​​​​​‌​‍“It was error to put upon the plaintiff the burden of proving that her intestate was. not negligent.” See, also, Hardy v. Lumber Co., 160 N. C., 113; Kearney v. R. R., 177 N. C., 251, 253.

We are sure the learned judge gave this instruction inadvertently, or thаt the necessary effect of it was not, at the time, apparent to him.

The second of the instructions to which exception was taken is subject, to the same criticism. It was given on the wrong issue. It was suggested, ‍​​​​‌​​​​​​​​‌​‌​‌‌​‌‌​​‌​‌‌‌‌​​‌​​‌​​​‌​​​​​​‌​‍on the argument, as to this instruction, that perhaps it was properly applicable to the measure of damages, because the injury in a legal *513 sense was complete wben the collision took place, and what happened afterwards, although in continued sequence, was merely an aggravation of the original damage, and should not have been dealt with under the head of negligence. It was further suggested that the case, in this aspect of it, bore some resemblance’ to, if not governed by, Blaylock v. R. R., decided at this term. "Whether this be so or not, we need nоt consider, as there was error in the charge upon the first issue, for which the judgment must be reversed. It makes no difference how often a case has been tried, if there is error it must be sent back to another jury until it is so tried, at last, as to be free from error.

We are convinced that there was substantial error, and the verdict may have been, and probably was, the result of it.

New trial.