14 S.E.2d 426 | N.C. | 1941
Civil action to recover damages for death of plaintiff's intestate, alleged to have been caused by the wrongful act, neglect, or default of the defendants.
The defendant Sherrin leased a filling station and grill to his codefendants, the Sappenfields. The septic tank on the premises became unsatisfactory, so the landlord and his tenants agreed to prorate the expense and to did a cinder pit six or nine feet deep some distance away on a lot belonging to the Sappenfields and to run an overflow pipe from the septic tank to the pit. This was done. It is alleged that this pit was negligently left open, and on the afternoon of 16 February, 1939, plaintiff's intestate, a child 4 1/2 years of age, fell into the pit and was drowned.
There is no evidence that the landlord participated in the maintenance of the pit at any time after its construction.
Two separate issues of liability were submitted to the jury, first, the liability of the tenants, and, second, the liability of the landlord.
After a recital of the plaintiff's evidence, the trial court concluded his charge on the first issue as follows: "Now if you find those to be the facts by the greater weight of the evidence (A) and you further find that that was negligence on the part of the defendants, the Sappenfields, *478 and you further find that that negligence was the proximate cause of the death or injury to this child, you would answer the first issue `Yes.' But if you do not find that to be true, or if you are not satisfied about it, then you would answer that issue `No.'" (B) Exception.
The jury answered the first issue "No" and returned its verdict without answering the other issues.
Plaintiff appeals, assigning errors.
The instruction which the plaintiff assigns as error was patterned after the language of the majority opinion when the case was here on demurrer of the landlord at the Spring Term, 1940, reported in
"If the defendant Sherrin was in fact at the time participating in the maintenance of the pit or hole located on the premises of the defendants Sappenfield, and the plaintiff offers evidence tending to support the other allegations, then it is for the jury to say whether, in the exercise of ordinary care, it was his duty to provide protection by fence or other devices and to give warning of the danger incident to the existence of the pit."
The court was not submitting a question of law to the jury when he used the expression, "and you further find that that was negligence," etc. Rather, he was leaving it for the jury to say whether the defendants, in the exercise of ordinary care, had done or failed to do what a reasonably prudent man would have done in the circumstances of the case. Negligence is doing other than, or failing to do, what a reasonably prudent man, similarly situated, would have done. Diamond v. Service Stores,
There is no evidence that the landlord participated in the maintenance of the pit. And, of course, if his tenants are not liable, he is not.
The verdict and judgment are supported by the record.
No error. *479
