Tillett v. Norfolk & Western R. R.

Avery, J.: There was no error in refusing to submit the issues tendered by the defendant. Those framed by the court involved the only questions left open for trial. Tillett v. Railroad, 115 N. C., 662. In the exercise of a sound discretion the court was at liberty to allow thejnry to pass upon the specific question whether the plaintiff was rightfully on the car, but the right of the plaintiff to board the car must have been proven necessarily in order to make out a prima facie case of negligence on the part of the defendant, and thus all of the controversy still left open might have been determined by means of the two issues involving the alleged negligence of the defendant and contributory negligence on the part of the plaintiff. What is negligence is a question of law, when the facts are undisputed. But where the facts are controverted, or more than one inference can be drawn from them, it is the province of the jury to pass upon an issue involving it. Deans v. Railroad, 107 N. C., 686. A mixed question is then presented, and it becomes the duty of the judge, at the request of counsel, to tell the jury howto apply the law of negligence to the various phases of the testimony, and the office of the jury to make the application of the law, as given by the court, to the facts as found by them. *1042 They determine in this way, by their responses to the issues, whether negligence or contributory negligence has been shown. When, therefore, the witness was asked to state whether a car was coupled in a negligent manner, the question was calculated to elicit an opinion upon one of the very questions which the jury were impaneled to decide, and the objection to its competency being made in apt tim.e was properly sustained. Smith v. Smith, 117 N. C., 326; Wolf v. Arthur, 112 N. C., 691. There is no merit in the exception to the refusal of the court by means of an additional issue to re-open the question of damages, which was finally settled and determined when this court granted a new trial limited virtually to two issues. It is'needless, therefore, to discuss the point presented by counsel on the argument. It was not error to refuse to allow defendant to show in diminution of damages already ascertained by a verdict that the permanent injury to plaintiff’s eve-sight was due to his failure to have. them properly treated after the accident. Such questions could only be considered by the jury in arriving at the quantum of damage. The court considered on the former hearing all of the questions then presented, and determined to settle all of them except those specifically mentioned, as they are empowered to do under the recent statute, by a jyer curiam judgment. The Court would have settled the w.hole case by such judgment had a new trial been refused upon every issue, and its ruling would have concluded the defendants upon all points. Although the judgment left certain questions open for another trial to the extent that the verdict was undisturbed, it was final — not subject to be set aside by any subsequent action of the court or jury. We must assume, if we had no actual knowledge of the matter, that the defendant had opportunity on a former trial to present to the jury the views of its counsel upon *1043 the question of permanent injury, and that this Court, upon reviewing the case on appeal determined that as to that matter it had no reason to complain. The plaintiff filed a petition to rehear, and at his instance the per curiam was modified. The defendant rested on its oars, and, having 'done so, is not entitled to the benefit of a rehearing on another appeal upon questions that are behind us. The defendant’s counsel objected to the introduction of the deposition of Ur. Graham, a specialist, in which he gave his opinion as an expert that the loss of eye-sight had been caused by the injury to the plaintiff’s head, sustained by reason of his falling in the car; and plaintiff’s couusel thereupon withdrew it, presumably upon the theory that it was conceded to be irrelevant as to any question before the jury. The question whether the lessor railway company is answerable jointly with the lessee Company operating its road for the injuries due to the negligence of the latter, and if so, what was the extent of such liability, arose in Logan v. Railroad, 116 N. C., 940. It was in this Court then res nova, but the Court, after giving the matter involved the careful consideration which it deserved, and upon a full discussion of the law, delivered an opinion which is decisive of the right to recover against the lessor in this case. Ye find in the argument on behalf of the defendant no reason for receding from the position then taken. In view of the conflict of authority in other states, this Court was left free to be guided rather by the weight of reason than by the number of precedents in reaching a conclusion. If, as already stated, it was the province of the court to determine whether any given act was evidence of a want of ordinary care, and if the loss of control over a train by engineer and brakeman,and consequent injury to a passenger, was due to a failure to apply *1044 brakes in time, and was properly lield by the court to be negligence, it would have been superfluous to add the word “ negligent ” as qualifying “ failure ” and it was not an error to omit it. If the braketnan failed to discharge sncb a duty when he had reasonable ground to apprehend that injury would result from such omission, he was clearly culpable, and the defendant companies were answerable for any injury resulting from such negligence. Blue v. Railroad, 116 N. C., 955. Where the injury is due to the negligent omission of duty by a brakeman, it is not a mere accident, and the objection to the charge that it made no allowance for accident, is not well taken. “ A sudden, violent, unexpected and unnecessary movement of a passenger car while passengers are getting on it at a‘proper time and place is negligence,” because those who permit such things to be done when they have power to prevent it by using proper precaution, and have reason to apprehend that passengers may be injured thereby, fail to exercise the care which the law demands as a duty of every carrier company that contracts for the safe carriage of passengers. It is manifestly a want of ordinary care to fail to apply brakes to a moving train, when the discharge of so simple a duty will avert all danger to passengers, that might result from a collision of cars, and the omission to perform it may subject them to peril. If the injury which the plaintiff sustained might have been averted by applying the brakes, and was a natural and probable consequence of the omission to do so, rhe law imputes it to the carelessness of the Company whose servant neglected to perform that duty (Pollock on Torts, star page, 463,) and holds the lessor company answerable to the same extent as though the lease had never been made. The jury must have found, under the instructions of the court, that the injury was due to a violent, unnecessary and unexpected collision caused by *1045 the failure to apply the brakes. It was the duty of the plaintiff to provide by proper care against such shock as was the natural and probable consequence of coupling the cars with care, but the law did not require him to rush into the very first seat he reached, instead of one a little further back on the opposite side, even though he knew that the train was about to be coupled, nor did it hold him culpable for failing to see that the coupling was about to be effected, when he might have seen it by looking up the road as he embarked on the train. He had a right to assume, and to act on the assumption, that the servants of the Company would discharge their duty. Russell v. Monroe, 116 N. C., 720. Although he had rheumatism in his lower limbs, he was not negligent in holding with one hand by the back of the seat which he selected, till his little child, nine years old, could pass ahead of him, for fear that the unusually rapid running of the engineer or the failure to apply brakes would cause an unnecessarily violent shock. Persons who are old or decrepit are not more culpable for failure to provide against the carelessness of those whose duty it is to provide for their safety than those who are vigorous and active. All alike may act on the assumption that the servants of a railroad company, whose occupation binds them to a high degree of diligence, will exercise at least ordinary care in looking after the safety of those whom the law places under their protection. It was not error to refuse to instruct the jury that the plaintiff was negligent in carrying in his arms or under his arms two bundles, one of which was, according to the description of a witness, about as large as a hat, and another a little smaller. Though there was conflicting evidence from some of defendant’s witnesses, there was abundant testimony, if believed, to warrant the jury in finding that the cars came against each other violently — with such force as to cause a crash *1046 and to send the passenger car half way across the street, or ten or fifteen feet. There was testimony tending to show that an old negro man, who was sitting on a seat, with his hands resting on the back of the seat in front of him, was thrown by the collision against the front seat in such a way as to make his nose bleed. Though the testimony was conflicting, the jury must have'believed that the servants of the Company failed to control the train and carelessly, because unnecessarily, permitted the cars to come together with unusual and unexpected violence. Under such circumstances, railroad companies cannot escape responsibility by showing that an infirm person failed to settle down in the first seat reached, or encumbered himself with bundles or the care of children so as to impede his movements. Whether the plaintiff1 bought, his ticket before or after the accident, it is not denied that he got upon the car for the purpose of taking passage on it, and that he did pay his fare subsequently. He was therefore, in any aspect of the evidence, a passenger. See authorities cited in Daniel v. Railroad, 117 N. C., 592. The plaintiff boarded the train while other passengers were getting on, and at a place where the company was accustomed to receive them, and had a right to receive them. Browne v. Railroad, 108 N. C., 34. There was no complaint that the question whether the plaintiff was warned to wait till the car should be drawn up in front of the station, was not properly left to the jury on the last trial. A careful review of the whole statement shows that there was no error, arid the judgment is therefore affirmed. Affirmed.