181 S.E. 261 | N.C. | 1935
These were civil actions, instituted by Mrs. Katherine Stephenson and Miss Katherine Stephenson, by her next friend, to recover damages for personal injuries received in a collision between two automobiles alleged to have been proximately caused by the negligence of the defendant Duke S. Leonard. By consent the actions were consolidated for the purposes of trial.
The plaintiffs were passengers in an automobile owned and operated by B. T. Stephenson, their husband and father, respectively, which collided with an automobile owned and operated by the defendant. The defendant, after denying his own negligence, pleaded as contributory negligence the failure of the plaintiffs to see and warn the driver of the car in which they were riding of the impending danger.
Separate but identical issues were submitted in the respective cases, to which identical answers were made, as follows: *452
"1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: `Yes.'
"2. Did the plaintiff, by her own negligence, contribute to her injury, as alleged in the answer? Answer: `Yes.'
"3. What damages, if any, is the plaintiff entitled to recover of the defendant? Answer: ____."
From judgments, based upon the verdicts, that they recover nothing, the plaintiffs appealed to the Supreme Court, assigning errors. The following portion of the charge of the court is made the basis of one of the plaintiffs' exceptive assignments of error, to wit: "If you find, the burden being upon the defendant, Mr. Leonard, to satisfy you by the greater weight of the evidence, that these ladies failed to observe the rule of ordinary care in keeping a lookout and in warning the driver of any approaching danger from a car traversing the intersection, and you find that under all those circumstances they failed to exercise ordinary care, then, gentlemen of the jury, it would be your duty to answer the second issue, that is, the issue of contributory negligence, `Yes,' that is, in favor of Mr. Leonard." The foregoing instruction was erroneous, for that it failed to make any reference to the requisite that the jury find that the negligence of the plaintiffs was a proximate cause of their injuries before answering the issue in favor of the defendant. We have carefully read his Honor's charge, and the words "proximate cause," or any words of the same import, are nowhere used with reference to the second issue.
Upon an issue of contributory negligence, "The test is: Did the plaintiff fail to exercise that degree of care which an ordinarily prudent man would have exercised or employed, under the same or similar circumstances, and was his failure to do so the proximate cause of his injury?" Moore v. Iron Works,
In order to show contributory negligence, the defendant must prove that the plaintiff has committed a negligent act, and that such negligent act was the proximate cause of the injury. The first requisite of proximate cause is the doing or omitting to do an act which a person of ordinary prudence could foresee might naturally or probably produce *453 the injury complained of, and the second requisite is that such act or omission did actually cause the injury. Brewster v. Elizabeth City, supra.
The defendant appellee in his brief cites the case of Parker v.Railroad,
For the errors assigned there must be a
New trial.