Moore v. . ParkerMoore v. . Parker
- Reporters:
- Before:
- Smith
The defendants’ first instruction was properly refused in the broad and unqualified terms used, and in its aрplication to the testimony in the present case.
We adhere to the rule laid down in the recént case of Aycock v. Railroad, 89 N. C., 321, and enunciated in these wоrds, originally proceeding from the pen of Judge Gaston : “ When he (the plaintiff) shows damages from their (the de *280 fendants) act which act, with the exertion of proper cаre does‘not ordinarily produce damage, he makes out a prima facie case of nеgligence, which cannot be repelled but by proof of care or of somе extraordinary accident which renders care useless.”
It was not contested but thаt-the disposition of the stove and the smoke-pipe was the act of the defеndants, and that the house was.set on fire, where the pipe passed through the wall; аnd in this condition the stove was used for some time, in heating, without communicating fire, to the building; sо that the previous care and attention of the defendants had prevented аny mischief. It devolved upon them, therefore, to explain, with the means possessed by them of doing so, how on this special occasion the fire was communicated, and to repel the inference of a want of that care and vigilance whiсh had hitherto repressed its outbreak, and prevented damage. This duty obviously, under the circumstances, rested upon those who were using this method of warming the room (and must be supposed to know) to show why what had not happened before did happen on this particu-tar occasion, and thereby remove the imputation of negligenсe.
Indeed, we are not prepared to say that the court would have errеd in telling the jury that running the pipe through the wall without separating it from the- wood by means of sоme non-combustible substance intervening, was itself an act ofmegligence, becаuse of the hazard it entailed ; and certainly, it was not error to decline to give thе instruction requested,
2. The second instruction was given, and the jury were told that if the plaintiff permitted the stove to be thus placed, or saw how it was and expressed himself satisfied, then the defendants would be relieved from the imputation of carelessness in adjusting thе pipe in its place, but they would still be required to take prudent care in the use оf the stove.
*281 The next three instructions, the subject of exception, embracing all but the last, which has been properly abandoned as untenable, were substantially given, and the giving them cannot be a ground of complaint on ‘the part of the appеllants.
A. party cannot except for error(in the words of Gaston, J., delivering the oрinion in Buie v. Buie, 2 Ired., 87), to an instruction which he hath himself prayed.
The same proposition has been reiterated in subsequent adjudications. McLennan v. Chisholm, 66 N. C., 100.
So a charge substantially such as asked, though not in very words, is sufficient. State v. Scott, 64 N. C., 586; State v. Hargett, 65 N. C., 669.
In like manner, when a questiоn of law is erroneously submitted to the jury, and the verdict is such as it would have been if declared by the court in the charge, the error is corrected, and the cause of сomplaint taken away. Reynolds v. Magness, 2 Ired., 26: Glenn v. Railroad, 63 N. C., 510; Terry v. Railroad, ante 236.
If the error assigned presented the appellant’s case in as favorable a light to the jury as if the law had been declared, they cаnnot, on this ground, have a new trial. Ray v. Lipscomb, 3 Jones, 185; Robbs v. Outlaw, 6 Jones, 174.
Applying the facts as presented in the testimony, aside from so much as relates to the alleged contributory negligence of the plaintiff, which is conflicting, it is plain that in laying down the rule to guide the jury in passing upon the question of nеgligence, instead of telling them w’hetherupon certain facts to be found by them therе was or was not negligence, the jury were left free to exculpate the defendants, and in this respect, the charge was more favorable‘to them than if the law hаd been positively declared by the court. While it was the duty of .the jury to accept the judges exposition of the law, they were left unembarrassed and at liberty’ to find it for thе defendants.
*282 The law as declared, is, we think, open to no objection from the defendants, and the jury seemed to have arrived at their Conclusion just as if they had recеived positive instructions upon the point. The court ought to hate expounded thе law just as the jury have understood and acted upon it, and there surely has no harm come to the defendants in consequence.
There is no error,’ and the judgment must be affirmed.
No error. Affirmed.