Opinion
(Decided 7 March, 1899.)
Negligence — Contributory Negligence.
1. Where the evidence is conflicting upon the issues of negligence by defendant and of contributory negligence by plaintiff, they both become questions for the decision of the jury, under proper instructions from the court.
2. Where such was the character of the evidence, special instructions asked for by the defendant — "That if the jury believe the evidence, the answer to the first issue (as to negligence) should be `No,' and the answer to the second issue (as to contributory negligence) should be, `Yes'" — were properly declined by the court.
ACTION for damages, alleged to have been sustained by the plaintiff through the negligence of the defendant in allowing its roadbed, where it crossed the public road at Harrisburg in Cabarrus County, to be in a dangerous condition, without warning, whereby he was unable to get over while attempting to cross with his mule and buggy, and was forced to jump out in order to save himself, upon the approach of a train, and was seriously injured in the fall.
Case tried before Allen, J., at July Term, 1898, of CABARRUS.
Burwell, Walker Cansler for plaintiff.
(148) G. F. Bason, F. H. Busbee and A. B. Andrews, Jr., for defendant (appellant).
This is an action for damages received by the plaintiff at Harrisburg, Cabarrus County. The plaintiff was driving in a buggy drawn by a mule, and was intending to cross the defendant's road upon the public highway, which crossed defendant's road at that point.
The defendant was engaged at that time in repairing its roadbed at the point where the public highway crossed it, and in so doing had dug a trench along its track and across the public highway, and had thrown a pile of dirt from the ditch or excavation into the public road. But plaintiff alleges that this excavation was so made, and the dirt so thrown, that he could not see it until he got on defendant's road, and did not know it was there until he was on defendant's road; that he saw defendant's train coming before he went upon its road, and had plenty of time to have crossed in safety but for the obstruction mentioned, put there by defendant, which frightened his mule and caused it to become unmanageable; that he was in plain view of the approaching train, and was seen or could easily have been seen by the engineman, after it was plainly apparent that his mule was unmanageable, in time for defendant to have stopped its train; that finding, the defendant's train was not going to stop, as it approached at great speed, the plaintiff leaped from his buggy and was badly injured.
Defendant admits that it was at work repairing and removing its track and roadbed, which it says it had the right to do, and although there was a small excavation across the public road and some dirt thrown up in the road, it might easily have been seen by the plaintiff, and would have been seen by him but for the fact that he was running a race with the defendant's train to get across the track before the train reached the crossing; that the train was in full view of plaintiff, and that it was his own fault and negligence to undertake to cross the track when he did; that defendant was guilty of no negligence, but plaintiff was, and cannot recover damages for his injury. The (150) following issues were submitted without objection:
1. "Was the plaintiff injured by the negligence of the defendant?"
2. "Did the plaintiff by his own negligence contribute to his injury as alleged in the answer?"
3. "If the plaintiff by his own negligence contributed to his injury, could the defendant, notwithstanding the negligence of the plaintiff, have prevented the injury to the plaintiff by the exercise of care on its part?"
4. "What damage is plaintiff entitled to recover?"
The jury answered the first issue "Yes," the second issue "No," and the fourth "$2,000." The third issue was not answered, under the direction of the court, as it became immaterial upon the first issue being answered "Yes" and the second "No."
It is not contended but what there was evidence tending to prove the issues passed upon by the jury, and the verdict and judgment must stand unless there was error committed by the court in not charging the law as requested by the defendant, or in erroneously charging the law as claimed by the exceptions of the defendant.
The defendant took and noted more than thirty exceptions to his Honor's charge, which, are presented by the record and case on appeal. All these exceptions have been carefully considered by the Court. But defendant, in its brief (while not formally abandoning any of them) discusses only the first and seventh exceptions, which are prayers for instructions on the part of the defendant, and they are as follows:
1. "If the jury believe the evidence, the answer to the first issue should be `No.'"
7. "If the jury believe the evidence, the answer to the second issue should be `Yes.'"
(151) The first issue is as to whether the defendant was guilty of negligence, and the seventh is as to whether the plaintiff was guilty of contributory negligence.
From the evidence in the case it is too plain for argument that neither of these exceptions can be sustained, and it seems that this would be an end of the case; but as we have said, although these two exceptions are the only ones called to our attention by the brief of defendant, we have carefully considered all of them, and find no error.
There is much learning displayed and many authorities cited in the brief, many of which have been examined by the Court. But we find that it is unnecessary to call any of them into requisition in deciding this appeal. It would be but to "thrash over old straw" without profit to the parties or to the profession.
NO ERROR.