We do not think it was error to refuse to admit the fourth issue tendered by the defendant. It is true that in strict parlance, and logically, there is a distinction between contributory negligence of the intestate and his voluntarily taking a risk which he knew to be dangerous. "Carelessness is not the same thing as intelligent choice," and most respectable authorities have pointed out the distinction. Bowen, L. J., in Thomas v. Quartermaine, 18 Q. B. D., 685, 697; Minor v. R. R.,153 Mass. 398. But upon the issue of "contributory negligence" both phases of the matter, negligence and voluntary assumption of risk, could be submitted to the jury, and the charge shows that the Judge did so submit this case. The defendant was not cut off from presenting (546) any phase of his defense, and it can serve no good purpose to more minutely divide the issues. Humphrey v. Church,109 N.C. 132; Denmark v. R. R., 107 N.C. 185. It would rather serve to confuse the jury. The jury readily comprehend that, by the issue of contributory negligence, they are asked to find whether the defendant's fault was the proximate cause of his injury, and it is immaterial whether that fault was carelessness or a reckless assumption of risk, provided the jury are given to understand (as they were in this case by the evidence, the argument of counsel, the prayers for instruction and the charge of the Court) that the issue was broad enough to cover both phases. "Reckless assumption of risk" has always been taken in our courts as being embraced in the issue of contributory negligence. Burgin v. R. R., 115 N.C. 673;Doster v. R. R., 117 N.C. 651; Turner v. Lumber Co., 119 N.C. 387. No harm has come from this course, and there is no need of further refinement.
It was error to exclude a written declaration of the witness Sheehan offered to corroborate him. Burnett v. R. R., ante, 517, and a summary of cases there cited. It made no difference that such declaration was not written by the witness. That it was read over to him and signed by him made it his as fully as if he had written it.
The seventh prayer for instruction was properly refused, as it assumed as a fact, though it was controverted, that the bad condition of the track was due to the negligence of C. H. Gilbert, and overlooked the further contention that the defendant was negligent in placing such a man, claimed to be unreliable, in charge of the track, and the evidence tending to show that neither he nor any one else was really charged with the regular and careful supervision and inspection of it. Freed from these controverted questions of fact, it is sufficient to say that if (547) Gilbert was responsible for the condition of the track, the intestate motorman and he were fellow servants. Ponton v. R. R.,51 N.C. 245; Kirk v. R. R., 94 N.C. 625, cited and approved in Hobbs v.R. R., 107 N.C. 1; Walker v. R. R., 128 Mass. 8; Johnson v. Tow Boat Co., 135 Mass. 209; Howd v. R. R., 50 Miss. 178; R. R. v. Tendal, 74 Am. Dec., 259. The Act of 1897 (inadvertently printed among the Private Laws of 1897, chapter 56), which provides that in actions against a railroad company for death or injuries sustained by an employee, the negligence of a fellow servant shall not be a defense, though valid as to injuries occurring after its ratification, is not and cannot be retroactive, and at the time of the accident which caused the death of the intestate the company was not liable for the negligence of his fellow servant. Hagins v. R. R., 106 N.C. 537; Hobbs v. R. R., supra.
It is also proper to say, as it may be of assistance upon another trial, that if Rittenhouse was running his car rapidly over the bridge, contrary to Rule 38 of the company, and the jury shall find that this was the proximate cause of injury, the plaintiff cannot recover. It is settled law that a servant cannot recover where his violation of his master's orders contributed to the injury. Bailey Master's Liability, 89, and note; Russellv. R. R., 47 Fed., 204; Mason v. R. R., 114 N.C. 718.
There being no exception to the finding upon the third issue, as to the quantum of damages, the appellant defendant requested that, if a new trial were awarded, it should only be granted upon the other issues, as was the case in Tillett v. R. R., 115 N.C. 662. Whether in such cases the new trial shall be partial or not was held in Nathan v. R. R.,118 N.C. 1066, to be in the discretion of the court, and in this case the majority of the court are of opinion that the new trial should be unrestricted and upon all the issues. (548)
New trial.
Cited: Bank v. School, 121 N.C. 108; Patterson v. Mills, ib., 266;Coley v. Statesville, ib., 316; Pleasants v. R. R., ib., 495; Strother v.R. R., 123 N.C. 200; Wright v. R. R., ib., 281; Benton v. Collins,125 N.C. 90; Lloyd v. Hanes, 126 N.C. 363; Wright v. R. R.,128 N.C. 78; McDougald v. Lumberton, 129 N.C. 202; Thomas v.R. R., ib., 395; Dorsett v. Mfg. Co., 131 N.C. 261; Pressly v. Yarn Mills,138 N.C. 420; In re Herring, 152 N.C. 259; McAtee v. Mfg. Co.,166 N.C. 458.