Ridge v. City of High Point

Walker, J., after stating the case: The defendant Tate Furniture Company asked for certain special instructions, and the court, we think, gave these which were correct, or such parts of them as were proper, in the general charge to the jury. We cannot see why, in any phase of the evidence, the defendants were not jointly liable to the plaintiff for the death of her intestate, which was plainly caused by their united and wrongful act. We cannot understand why this case, upon its uncontro-verted facts or upon the evidence, which, in this respect, bears all one way, is not brought thereby within the principles stated and applied by us in Gregg v. City of Wilmington and James F. Wool, 155 N. C., 18. As to the Tate Furniture Company, there is the additional fact, which was not in the Gregg case, that it was directly and intentionally *424 violating an ordinance of the city of High Point when it piled the lumber in the street, and thereby obstructed it and rendered it exceedingly dangerous to persons on trains which passed that point. In any view of the,facts, whether by reason of the violation of the ordinance or by the act itself of piling the lumber in such close proximity to the railroad track, that company was negligent, and there can be no doubt of the correctness of the verdict, which finds that this act of negligence caused the death of the intestate. Upon the evidence, this proposition is is hardly arguable. The city is also liable because, as the jury properly found, it had notice, or should in the exercise of due care have had notice, that this lumber had been carelessly piled in the street so as to become an obstruction to those entitled to use it and a menace to those operating the trains on the railroad track. It was a public nuisance as defined and understood by the law. But the court left the question of negligence to the jury for them to find the facts, with proper instructions as to the law of negligence. It would, upon the facts, which cannot be seriously denied, appear that there was negligence on the part of both defendants which was the proximate cause of the death, not considering now the contributory negligence of the intestate, if there was any. There was a clear violation of the ordinance when the lumber was piled in Perry Street, and this was negligence per se, or, in other words, it was negligence, as matter of law, to be declared by the court, but it was not actionable negligence as it may have resulted in no actual harm. In order to make it actionable, it was necessary to show that it was the proximate cause of the death, as the two must unite so as to become actionable. This is fully explained in Ledbetter v. English, 166 N. C., 125; McNeill v. R. R. Co., 167 N. C., 390; Paul v. R. R. Co., 170 N. C., 230. It was said by Justice Allen in the Paul Case: “It is established by the evidence that the defendant blocked a public crossing in the town of Parkton with a train of cars in violation of the ordinance of the town, and this is negligence; but a plaintiff cannot recover upon proof of negligence alone. He must go further and show that the negligence complained of is the proximate cause of his injury.” And in Rich v. Electric Co., 152 N. C., 694, by Justice Manning: “It seems to us that the principle is clearly settled by this Court in the cases cited that while the violation of a statute is negligence, yet to entitle the plaintiff seeking to recover damages for an injury sustained, he must show a causal connection between the injury received and the disregard of the statutory prohibition or mandate — that the injury was the proximate cause; and this requirement is fundamental in the law of negligence.” The Court said in Ledbetter v. English, supra, at p. 130: “When it is remembered that negligence is the failure to perform a duty imposed *425 by law, it necessarily follows tbat the failure, without legal excuse, to ■obey the provisions of a statute or ordinance imposing a public duty is negligence, and not merely evidence of negligence, and that when this is proven, the plaintiff has furnished some evidence of a right to recover, which can, however, avail him nothing unless he goes further and proves that this failure of duty was the real or proximate cause of his injury.” It may be stated another way: When the violation of a statute or ■ordinance is shown, it is negligence in itself, but is not actionable until damage appears as its proximate effect, so that a causal relation between them is established. Brewster v. Elizabeth City, 137 N. C., 392; Crenshaw v. R. R. Co., 144 N. C., 314; Hanes v. Shapiro, 168 N. C., 24, and McAtee v. Mfg. Co., 166 N. C., 457, where it is said: “It is true that no cause of action can arise by reason of a negligent default unless there is continuous and natural sequence and which a person of ordinary prudence could foresee would naturally and probably ensue.” The Court said in the Crenshaw case, supra: “The burden is always on the plaintiff to show by a preponderance of the evidence that the defendant committed a negligent act, and that it was the proximate cause of the injury. The two facts must coexist and be established by the clear weight of the evidence before a case of actionable negligence is made out.”- But the negligence of the defendants is so apparent that it is scarcely required that we should prolong the discussion. The court correctly charged as to the element of proximate cause, defining and explaining it to the jury with sufficient precision. As to the intestate’s contributory negligence: We are unable to say, upon the evidence and as matter of law, that contributory negligence was conclusively shown, for there are permissible views of the evidence which make it a matter for the jury. The question, at last, is whether the intestate acted as a man of ordinary prudence would have done in the same circumstances, considering that he was, at the time of his death, engaged in operating the train and intent upon the performance of his duties. When the motor engine passed the lumber pile the same morning there was no difficulty in passing it safely, and between 28th May and 1st June of that year another pile of lumber had been placed by the side of the track. Whether the plaintiff selected the better method of performing his work was also a question for the jury, and the learned judge submitted all the essential questions of fact to them with proper explanation of the law. If he had withdrawn the question from the jury and decided it himself as matter of law, and directed them to answer the third issue “Yes,” it would have been error, as, for one reason — and there are others equally strong — he would have taken from the consideration of the jury the question as to the credibility of the witnesses. For illustration: it was *426 for them to say whether they believed the motorman when he stated what the intestate said in regard to the dangerous character of the pile of lumber, and whether at the time he was killed the intestate knew of the danger; and it was also necessary for the jury to decide whether the intestate exercised due care and prudence in the manner of doing his work. It is true, generally speaking, that when two methods are presented for doing a thing, the one safe and the other dangerous, the servant should, in the exercise of ordinary care, adopt the safer course; but in its application, this rule, like all others, will be found to depend, upon the particular facts of the case, which the jury must find. It would be useless to consider the case more extensively or more in detail. The charge of the court was full, and the presiding judge carefully stated the contentions and explained all the rules of law applicable to the facts as the jury might find them to be. It did not fall short of a strict observance of the statute in any respect, and gave the defendants the full benefit of all the instructions to which they were entitled. The question involved was free from any difficulty in law, and the just result depended very largely upon how the jury should find the facts, to be. The charge was certainly -not unfavorable to the defendants. Whether the city of High Point has properly brought its appeal to-this Court or not makes little practical difference, as we hold that, if it has, there was no error as to either defendant. The question as to primary and secondary liability was properly submitted to the jury, and we think that, in law and in fact, they have returned a correct verdict upon that question. We have reviewed and examined the record with great care and scrutiny and can discover no error therein. No error.