Judges： Axlen, Beown, Clark, Walker
Filed Date： 11/10/1920
Status： Precedential
Modified Date： 11/11/2024
after stating the essential facts of the case: The defendants contend that the instruction covered by their exception No. 28, which was taken to the instruction of the court to the jury, was erroneous, and agreed that it is especially objectionable because by it the jury were told that if the plaintiff looked and listened, and did no more, before entering upon the crossing and the track, they should answer the issue as to contributory negligence “No.” ¥e will not discuss the question whether other instructions on this phase of the case were given which were, in themselves, correct, because, even if they were, the other one was erroneous, and in conflict with them. The rule of this Court upon such a question is thoroughly well settled by our decisions. Where such a conflict occurs, a new trial is granted, because the jury are not competent, as we have often said, to decide which instruction is correct, or which is incorrect. We find this rule thus stated in Edwards v. R. R..
The court charged the jury that it was sufficient in law if the plaintiff • “looked and listened,” without doing anything more, and if the jury found that he did, they should answer the second issue, as to contributory negligence, in the negative. This instruction was erroneous, because that it is not all that 'is required of the plaintiff, but in addition thereto he must further do what a man of ordinary prudence would have done, as, for instance, stopped his car (if the jury would have found that a man of ordinary prudence would have done so), under the same or substantially similar circumstances, to save himself from injury. So that the instruction fell short of the full measure of plaintiff’s duty under circumstances which the jury could have found to exist, and this is true, although the jury should find that one of the defendant’s engineers, who was at the time in control of the engine, had failed to give the proper signal.
The rule thus stated was the one adopted in Cooper v. R. R., 140 N. C., 209. Even though 'the plaintiff looked and listened, the jury may have found that the situation was such as to require him to do more, even to stopping his car, as a man of ordinary prudence would have done in like circumstances, or they may have found, by using their common sense and observation, that, notwithstanding what the plaintiff says as to the noise of his car, his ability to hear was so diminished by the noise of the same as to make it imperative that he should stop it, so that he might hear either the noise of the train as it approached nearer and nearer, or the sound of its signal. The jury could have arrived at this conclusion if they accepted the defendant’s evidence as true, that the proper signals were given, and there was no reason why the plaintiff should not have heard them and prevented injury to himself, unless his hearing was deadened by his own fault in not stopping his car. And they could also have found that no man of ordinary prudence would venture on the track under the circumstances without assuring himself of the fact that the train, then expected and behind its schedule time,
In Shepard v. R. R., 166 N. C., 539, it was said by Justice Hoke, citing many cases, and among them Cooper's case, supra: .“It is also established by the weight of authority that it is not always imperative on a traveler to come to a complete stop before entering on a railroad crossing; but ‘whether he must stop, in addition to looking and listening, depends upon the facts and circumstances of each particular case, and so is usually a question for the jury,’ ” citing Judson v. R. R., 158 N. Y., 597; Malott’s case, 159 Ind., 127-134; 3 Elliott on Railroads (2 ed.), sec. 1095, note 147; 33 Cyc., pp. 1010, 1020. In Judson’s case, supra, the rule is stated as follows: “A person approaching a railroad crossing is not required, as a matter of law, to stop before attempting- to cross, but his omission to do so is a fact for the consideration of the jury,” And in Malott’s case, supra: “Exceptional circumstances may also require him to stop, although this proposition generally presents itself as a mixed question of law and fact.” And Justice Iloke thus concluded, in Shepard’s case: “On a careful perusal of the record we are of opinion that the issue of contributory negligence must be referred to the decision of another jury, when the question whether, on the entire facts and circumstances, as the jury may find them to be, the plaintiff was in
And yet tbe court ignored those principles, and omitted important and essential matter from bis instruction on tbe second issue, and .confined plaintiff’s contributory negligence to tbe single fact, wbetber be ‘looked and listened,” witb tbe instruction that if be did to answer tbe issue “No.” When tbe court undertakes to define wbat is negligence, it must do so fully, and not leave out any essential element of it, S. v. Phifer, 90 N. C., 721, or to state it differently. When tbe court attempts to charge tbe law, it must be done correctly. S. v. Merrick, 171 N. C., 788, and cases cited, especially Carleton’s case, 43 Neb., 373, and Simmons v. Davenport, 140 N. C., 407.
As to tbe motion for a. nonsuit we will reserve our opinion, as the facts may more fully and definitely appear on tbe next trial. Defendants may renew their motion at that time without prejudice.
We are, therefore, of tbe opinion, and so bold, that there was substantial error as pointed out by us, and a new trial is ordered.
New trial.