101 S.E. 19 | N.C. | 1919
This is the third time we have had this case before us. It is reported in
The principal errors assigned in this record are those taken to two instructions of the court, which we will designate by numbers:
1. "If you find from the evidence that the plaintiff drove his horse across the track of the railway when he saw the car approaching him, and thereby took the change of his ability to pass over the track in safety, and that a man of ordinary prudence and care would not have attempted to do so under the same or similar circumstances, and drove his wheel upon the fender of the car and was thereby injured, plaintiff, under these circumstances, would be deemed to be guilty of such negligence as, nothing else appearing, would bar his recovery as the proximate or concurring cause of his injury, and, in that event, you would answer to the first issue `No.'
2. "If you find the facts to be that the collision between the buggy and the street car broke the harness so that the only connection between the horse and buggy was the plaintiff's holding on to the reins, and that therefore the horse ran away, and the plaintiff negligently continued to hold to the reins until he was pulled over the dashboard, and on account thereof the received the injuries of which he complains, and if you further find that his negligence in this respect was the sole proximate cause of his injury, you will answer the first issue `No.'"
The plaintiffs' objection to the first of these instructions is based upon two grounds:
(1) It places the burden on the plaintiff of proving that he was not guilty of contributory negligence, and not upon the defendant, whose burden it was to prove that he was guilty of negligence.
(2) It permitted the jury to answer the first issue "No." without even considering the alleged negligence of the defendant.
Judgment for defendant, and appeal by plaintiff.
after stating the facts: The burden was upon the plaintiff to satisfy the jury upon the first issue that the defendant was negligent, and that its negligence was the proximate cause of the injury to him. This was his only burden. When he had established the defendant's negligence as the proximate cause of his injuries, the burden then shifted to the defendant, and it was required to prove, under the second issue, the plaintiff's contributory negligence. When it has done that, the burden again shifts, but this time to the plaintiff, and he must show that under the third issue, *548
notwithstanding plaintiff's negligence, the defendant could, by the exercise of ordinary care, have prevented the injury to him. The first of the instructions given by the court violated this rule, because it placed the burden on the plaintiff upon the first issue to disprove his own negligence, whereas, his burden was to show merely the defendant's negligence as the proximate cause of the injury. The burden thus placed on the plaintiff did not properly belong to him, and his own negligence was not involved in the first issue, but only the defendant's negligence, and the question whether it was the proximate cause of plaintiff's injury. The jury, under this instruction, could well have answered the first issue "No," without considering the question really presented by it, namely, whether the defendant had caused such injury by its negligence. But, even if the judge had once properly instructed the jury on the first issue, this second instruction thereon would have been error, as being wrong in itself, and as leaving the jury in doubt as to the correct law. Tillet v. R.R.,
There was evidence in this case sufficient to carry it to the jury.Wheeler v. Gibbon,
We are sure the learned judge gave this instruction inadvertently, or that 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 sense was complete when the collision took place, and what happened afterwards, although in continued (513) sequence, was merely and 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 not consider, *550 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.
Cited: Hudson v. R. R.,