Edwards v. Gimbel , 42 W.N.C. 561 ( 1898 )

Opinion by

Mr. Justice Mitchell,

The motion to quash the appeal must be denied. The authorities cited by the appellee apply to cases where the charge is filed by the stenographer without affirmative evidence that it was done at the direction or with the approval of the judge. But in the present case the charge is contained in a formal bill of exceptions signed by the judge, and is therefore regularly on the record.

The learned judge is reported as having charged the jury: “ There can be no question about the negligence of the deceased because there is no evidence which directly shows what he was doing, except the evidence of the two boys, and they say that he stepped directly in front of the horse. At all events, it is important for the jury to consider where he was when he was struck, and from the evidence it appears that he had only begun to cross.” This language is not consistent with the rest of the charge or with the evidence. Whether it meant that the deceased’s negligence or that his freedom from negligence was beyond question, is uncertain. If it meant that the only evidence in the case showed the deceased’s negligence, the judge would of course have nonsuited the plaintiff or have directed for the defendants, but the rest of the charge shows conclusively that that was not the meaning, as in the same paragraph the judge proceeds to discuss the speed of the wagon as the important element in determining the deceased’s negligence as well as the driver’s. In either meaning of the phrase it is clear that it was erroneous. We have little doubt that it is misreported by the omission or change of one or more words, but we must take the record as we find it, and so taken the language could hardly fail to confuse and mislead the jury.

In the same passage it is also said “ from the evidence it appears that he had only begun to cross.” This is directly contrary to all the evidence. Both parties agree that deceased was crossing from the north to the south side of Market street, and was struck on or just south of the southernmost rail of the east bound or southern track, so that instead of having just begun to cross he was just finishing the crossing. Plaintiff claims that the driver rapidly and recklessly drove against the deceased, defendant that deceased darted unexpectedly in front of the horse, and was struck by his own fault, and not that of the driver. This was the question for the jury.

Judgment reversed, and venire de novo awarded.