Perry v. . Sykes

Seawelx., J. Our present procedure by which two appeals on matters of law or legal inference may be made with respect to cases tried in tbe county court — first to tbe Superior Court and thence to tbe Supreme Court — complicates tbe business of final decision. If there were three such appeals this court would have much tbe same difficulty as was presented in Newton’s problem to determine tbe behavior of three moving bodies under tbe influence of mutual gravitation. It has been tbe practice of this Court to deal with tbe more important features of appeal cases on which tbe decisions may be grounded, without unnecessary attention to matters which may not recur upon a second trial. Tbe court is intended to be a fountain of justice but not of *42 expository law. On appeals of this kind we will not undertake to pass upon the exceptions in detail and the affirmation or reversal of the judgment of the Superior Court must not be understood as necessarily carrying approval or disapproval of rulings on exceptions not considered here on the final appeal. Plaiiítiff’s Appeal. Judge Olive, of the Superior Court, was correct in ordering a new trial in the county court. The trial judge charged the jury: “The court further instructs you that a common carrier is held to exercise the greatest practicable care, the highest degree of prudence, and the utmost human skill and foresight which has been demonstrated by experience to be practicable. They are so held upon the grounds of public policy, reason, and safety to their patrons.” We think this enhances the duty required of the defendant beyond the measure recognized by well considered opinions of this Court as being sufficient in the transportation of passengers. This instruction, practically identical with that in Daniel v. R. R., 117 N. C., 592, 23 S. E., 327, is disapproved in Hollingsworth v. Skelding, 142 N. C., 246, 248, 55 S. E., 212. The rule given in Hollingsworth v. Skelding, supra, is somewhat less exacting, and goes as far as the present development of the law of negligence seems to demand: “We doubt if any better definition of the duty of a carrier owes the passenger can be found than that of Lord Mansfield in Christie v. Griggs, 2 Camp., 29: ‘As far as human care and foresight could go, he must provide for their safe conveyance.’ In commenting upon this case, Mr. Barrow says: 'It must not be supposed, however, that the law requires the carrier to exercise every device that the ingenuity of man can conceive.’ Such an interpretation would act as an effectual bar to the business of transporting people for hire.” Again, the trial judge instructed the jury as follows : “And the court further instructs you, gentlemen of the jury, if you should find from the evidence, and by its greater weight that any one of these other parties who were involved in this collision was negligent and should further find from the evidence and by its greater weight that that negligence, if you find there was such negligence, was a proximate cause of the collision, and should further find from the evidence and by its greater weight that the negligence on the part of the defendant, if you find that there was such negligence, did not concur with the negligence of any one of these other parties, the court instructs you under those conditions you. would answer this issue No.’ ” *43 This is open to the objection that tbe jury may have construed it to mean that the burden was on the defendant to show by the greater weight of the evidence that its negligence did not contribute as a proximate cause to plaintiffs injury. On plaintiff’s appeal the judgment of Judge Olive in ordering a new trial is Affirmed. DeeeNdaNt’s Appeal. There are two exceptions of the defendant Blue Bird Oab, Inc., which demand attention: The first is to the judgment of nonsuit dismissing the defendant R. J. Sykes from the case at the close of plaintiff’s testimony. Without considering its propriety in the abstract, we do not think the defendant, under its pleading, is in position to resist it. The defendant does not contend that, ordinarily, a nonsuit cannot be had at the close of plaintiff’s evidence, when it is insufficient to go to the jury. A defendant cannot be kept in the case in the mere capacity of a scapegoat, performing no other useful function. But the appealing defendant insists that it had the right to keep Sykes in the case as a joint tort-feasor, from whom it would be entitled to contribution under C. S., 618 (Michie’s 1935 Code). The answer simply denies negligence on the part of the Blue Bird Cab Company, and alleges that the negligence of Sykes was the sole proximate cause of the injury. The answer makes no demand for affirmative relief, and is insufficient to support the exception. Walker v. Loyall, 210 N. C., 466, 187 S. E., 565; Ballinger v. Thomas, 195 N. C., 517, 142 S. E., 761. On this defendant’s exception to the failure of the trial judge to sustain its motion for judgment of nonsuit in its own behalf, and to Judge Olive’s judgment sustaining the trial court, we think there was evidence of negligence on the part of defendant, which was properly submitted to the jury. On defendant’s appeal, the judgment of the Superior Court is Affirmed.