Wood v. Bartholomew

Eurches, J.:

The defendants are druggists, and the plaintiff, according to the finding of the jury, applied to them for rhubarb and they sold him podophyllin. This drug was given to his wife as rhubarb, from the poisonous effects of which she died. And this action is brought against the defendants for damages caused by their negligence in selling the plaintiff podophyllin for rhubarb. The defendants deny that they sold podo-phyllin for-rhubarb, and allege that if they did, and it was the cause of the death of the intestate, wife of plaintiff, still her death was caused by her own negligence contributed to that of defendants. But the jury has found that the death was caused by the negligence of defendants and not by the negligence of the intestate, contributed thereto — ,that intestate was not guilty of negligence in taking the drug, negligently sold by the defendants.

These questions are settled by the jury and must stand, unless the Court has committed some error in not dismissing the plaintiff’s action upon the motion of defendants under the Act of 1897, or in allowing improper evidence under the objection of defendants, or has failed to give some proper instruction asked by defendants, or has given the jury improper instructions as to the law governing the case which has been properly taken and pointed by exceptions. We have examined the record and fail to find any such errors.

There are some exceptions to evidence, but none of them can be sustained.

There are numerous prayers for instructions, not given by the Court as asked. But in our opinion every proper instruction asked by the defendants is given in the exhaustive written charge of the Court. And if there were error in the charge (and if so we have failed to see it) the exception to the charge is so general — “broadside” — that it could not be considered by the Court. Barcello v. Hapgood, 118 N. C., 712; State v. Downs, Ibid 1242.

But the case was principally argued before us upon the Court’s refusing to dismiss the plaintiff’s action at the close of plaintiff’s evidence under the Act of 1897; and that the Court failed to find and instruct the jury that the testator’s death was caused by her own negligence in taking the defendants at their own word and in taking the drug to be what they said it was. That she, an uneducated woman in the science of medicine, should have discovered in the evening twilight, by her sight and smell, what the defendants, being druggists, had failed to discover in broad open daylight by their sight and their smell, when they put up and weighed this drug!

We have considered at some length the effect of the statute of 1897 in the case of Purnell v. Railroad, at this term, in which we held that the defendant has the right to have the ruling of the Court reviewed upon the status of the case at the time the motion is made. But the defendants, it seems to us, have entirely misconceived the application of this statute and the duty of the Judge.

It was not contended by defendants that plaintiff’s evidence did not make out a case of negligence against the defendants. This statute only applies where it is alleged by the defendant that the plaintiff’s evidence failed to make a case against the defendant. If the defendants were guilty of negligence that caused the intestate’s death, and there was no contributory negligence on her part, the defendants are certainly liable.

The burden of the issue of contributory negligence is on the defendants. It is an affirmative issue and cannot be found by the Court. It must be determined by the jury. White v. Railroad, 121 N. C., 484; State v. Shule, 32 N. C., 153. The Court might find that there was no contributory negligence if there was no evidence to support this issue. But that would be just what the defendants did not wish the Court to find. There is no error and the judgment is affirmed.

Affirmed.