Cherry v. . R. R. , 186 N.C. 263 ( 1923 )

Civil action to recover damages for physical injuries caused by alleged negligence of defendant company. There were allegations, with evidence, tending to show that on the afternoon of 6 April, 1909, plaintiff, being at the time a minor of 12 years of age, he was sent by J. R. Moore, station agent of defendant company in Greenville, N.C. to mail a letter on a passenger and mail train of defendant, on the yard at the time and just in the act of moving out of the yard; that the letter was addressed to officers of defendant company; that plaintiff went up to the moving train and threw the letter into the mail car, running along the track a short distance to do so, and as he turned away he stumbled and fell over a pile if cinders dumped near the track by defendant company or its employees, rolled under the train, and thereby received painful and serious injuries, including a broken leg, etc.; that the dumping of these cinders was on a public street or avenue of the town and was in violation of a town ordinance in existence at the time and applicable to the conditions presented.

The defendant denied that J. R. Moore was agent or that the company was in any way responsible for his acts, denied the existence of the ordinance or any negligence in reference to this question, alleged contributory negligence on part of plaintiff, and offered evidence in support of its positions.

On issues submitted, by the jury rendered verdict:

"1. Was plaintiff injured by negligence of defendant, as alleged in the complaint? Answer: `No.'"

Other issues not answered.

Judgment on verdict for defendant, and plaintiff excepted and appealed, assigning for error chiefly his Honor's charge on the first issue: "If you find that Moore was agent, the burden being on plaintiff to so satisfy you, and the injury occurred as a result of his direction to plaintiff while he was acting in the scope of his authority as agent, you will answer the first issue `Yes'; otherwise, you will answer it `No.'" The allegations of the complaint and the evidence introduced on part of plaintiff present, and are intended to present, the question of defendant's liability in two aspects:

First, by reason of an alleged negligent order on part of defendant's agent.

Second, the violation of a town ordinance applicable to conditions presented and alleged to be a proximate cause of plaintiff's injury.

The two grounds of liability were distinctly recognized on a former appeal in this cause, wherein Associate Justice Adams, delivering the opinion, interpreting the complaint, said: "The principal alleged acts of negligence are the breach of a town ordinance and the negligent employment by defendant of an immature and inexperienced youth to go upon a dangerous mission." Cherry v. R. R., 185 N.C. 90-92.

The ruling in respect to the violation of a valid town ordinance, when shown to be the proximate cause of plaintiff's injury, or one of them, is in accord with our decisions on the subject (Stultz v. Thomas, 182 N.C. 471;Paul v. R. R., 170 N.C. 230), and there was prejudicial error, therefore, in restricting the issue of liability to the question of the agency of Moore and his conduct in the matter. It is contended for defendant that plaintiff is precluded from this, his principal objection, by reason of an entry appearing in the case on appeal immediately preceding his Honor's charge, in terms as follows:

"The court then stated that upon the first issue he would charge the jury that in order for them to answer it in the affirmative, they would have to find that the plaintiff was sent to mail the letter by an agent of the defendant while acting in the scope of his authority, to which there was no exception, the case having been heard upon the theory that plaintiff was injured while acting under the direction of the defendant's local agent. Whereupon the court charged the jury as follows:" But, in our opinion, this position cannot be maintained.

It is the approved construction of our statute regulating appeals, more especially C. S., secs. 643 and 520, subsec, 2, that exceptions to the charge are not required to be made at or immediately after the trial, but appellant is entitled to have them considered if they appear for the first time in the case on appeal, where the same is tendered in apt time. Paul v.Burton, 180 N.C. 45, citing Bernhardt v. Brown, 118 N.C. 700; Lowe v.Elliott, 107 N.C. 718; C. S., sec. 590, subsec. 2, and other cases. And a party is not to be deprived of this privilege because the trial judge sees proper in advance to intimate what his instructions will be, unless the propositions as stated are expressly agreed to by the parties. When they become and are made a part of the charge, they are open to exception, as the statute provides. True, the entry referred to closes with the statement that the case was tried on the theory that plaintiff was injured while acting under the direction of defendant's local agent, but there is nothing in the record to indicate that appellant assented to any such procedure, and in the absence of such assent he was entitled to have his cause presented to the jury in every aspect that his pleadings and evidence would justify, and a failure to do this in any substantial or essential feature of the case will constitute reversible error. S. v. Merrick, 171 N.C. 788-795.

In our opinion, there should be a new trial of the cause, and it is so ordered.

New trial.