Scott v. Wilmington & Weldon Railroad , 96 N.C. 428 ( 1887 )

Smith, C. J.,

(after stating the facts). There a.re but three errors sufficiently assigned in the record requiring the exercise of our appellate jurisdiction, and these are the refusals to submit the proposed issue 'as to the defendant corporation’s agency in bringing about the disaster to the person, horse, and dray of the plaintiff; and to give the 12th instruction, as also to the modification in that next numbered.

I. The issue proposed and refused:

It is true, the inquiries into the defendant’s negligence, and that imputed to the plaintiff, contributing to the result, might have been presented to the jury in separate issues, as was done in Kirk v. Railroad, 94 N. C., 625, inasmuch as the liability for the consequence depends on the presence of the one and the absence of the other on the occasion of the mishap. Yet when the action of both has contributed to the bringing about of the injury, it is sometimes not easy to run the dividing line between the co-operating agencies, and say where the essential culpability rests. The Judge deemed the association so close as to involve both inquiries, and that the same end would be reached, and the minds of the jury less distracted from the merits of the controversy, by having a single issue, under directions to render a negative response, if upon the evidence, it appeared, that the injury would not have been suffered, had the plaintiff exercised proper care and vigilance in avoidance. So he charged the jury, and we must suppose his instruction was understood and acted upon. If so, the defendant has had every advantage which a second issue, if allowed, would have given him, and no prejudice has come in consequence of the refusal. Cedar Falls v. Wallace, 83 N. C., 225.

II. The denied instruction:

We can see no error in this ruling. There is no negligence in the single act of passing from the middle of the street where the approaching train could have been seen, to a place where a partial obstruction to the view was met. It was in moving thence towards the track, without a sharper lookout and greater carefulness, to which negligence can be attributed, and this is covered by other parts of the charge.

III. The modified instruction:

The instruction in the form asked, was entirely inadmissible, for seeing the cars at the first crossing, would not make the plaintiff “ guilty of contributory negligence ” and defeat his recovery, while it should have imposed greater caution on him, driving onward afterwards. Yet even this was given, with the addition, that this would be so, if when he saw the cars, he discovered that they were on the track that brought them towards him, and the ability to thus distinguish, depended on conflicting testimony, bearing upon the series of instructions favorably responded to We can see no just grounds of complaint afforded the appellant.

The instructions given at the instance of the plaintiff are not excepted to, nor is the ruling assigned as error. Nor if it had been, would we be prepared to sustain the exception thereto.

We cannot disturb the verdict, for the responsibility of rendering it, when there is any reasonable, that is any, evidence to warrant the finding, rests upon the jury.

There appears no error in the record, and the judgment must be affirmed.

No error. Affirmed.