Bradwell v. Pittsb. Etc. Pass. Ry. Co. , 27 W.N.C. 264 ( 1891 )

OPINION,

Mr. Justice Sterrett :

It is conceded by the learned counsel for plaintiff that there is nothing in this record on which to base the first and second specifications of error. It does not appear that any objection was made or exception noted in the court below as to either of the matters referred to in these specifications, and hence the questions intended to be raised are. not properly before us. When the relation of the fourth juror to a member of the company defendant was disclosed, the plaintiff might have interposed a challenge for cause, and if the court had refused to sustain it, he could have excepted, and requested the court to seal a bill. In that way the facts could have been brought upon the record, and the question would have been properly presented; but, as the record stands, the first and second specifications must be dismissed without any intimation of opinion as to the merits of the questions intended to be raised.

The prayer for instruction, recited in the third specification, was rightly refused, because it entirety ignores the question of contributory negligence. While the evidence on that subject is very slight, we are not prepared to say that it does not amount to more than a mere scintilla.

In that portion of the charge recited in the fourth specification there is manifest error, especially in what was said by the learned judge in relation to the degree, as well as the burden of proof. Among other things, he instructed the jury that they must “ be thoroughly satisfied that the accident did not occur in consequence of the carelessness of the plaintiff: in his driving. You are to be'satisfied on that point, because the duty of the plaintiff is not only to prove negligence on the part of the defendant, but also to prove that he was clear of contributory negligence,” etc.

By the expression “thoroughly satisfied,” the jury would doubtless understand the court to mean that it was not only necessary for them to believe the weight of the evidence, on the subject of contributory negligence, was in plaintiff’s favor, but that their belief must be so strong as to exclude every reasonable doubt that plaintiff’s carelessness in driving did not contribute to his injury. The instruction as to the burden of proving absence of contributory negligence is too clear and explicit to admit of any doubt. The charge is so clearly erroneous, in each of these particulars, that -it is unnecessary to refer to any of the authorities establishing the contrary doctrine. In actions such as this, it has been sometimes said that the plaintiff must present a case clear of contributory negligence. The obvious meaning of that and similar forms of expression is, that the burden is on the plaintiff to prove that the injury complained of was caused by defendant’s negligence, and if, in so doing, the fact is disclosed that his own negligence contributed to the result, there can be no recovery, because the case as thus presented by the plaintiff is not clear of contributory negligence. It was never intended to mean that the plaintiff, after first proving affirmatively that defendant’s negligence caused the injury, must also prove negatively that he himself was not guilty of any negligence that contributed to the result. No reputable authority can be found anywhere to sustain such a proposition, and much less is there any reason for requiring the high standard of proof specified by the learned judge. Ordinarily, the standard of proof, in civil cases, is preponderance of evidence; not such a degree of proof as will produce “ thorough ” satisfaction in the minds of the jurors, as to the truth of an alleged fact.

In view of the uncontradicted evidence as to the serious nature of plaintiff’s injuries, his actual outlay for surgical attendance, loss of earning power, etc., the verdict of six and one fourth cents in his favor was a mere travesty of justice that could not be condoned by the provisional order for a new trial which the plaintiff refused to accept. In finding for plamtiff, the jury must have reached the conclusion that his injuries were caused by the defendant company’s negligence, and that he himself was not guilty of any negligence contributing thereto. Under these circumstances, he was entitled, as matter of right, to have tbe jury pass fairly on tbe question of damages, and by their verdict award him such sum as, under the evidence, he was entitled to.

The fourth, fifth, and sixth specifications of error are sustained.

Judgment reversed, and a venire facias de novo awarded.