Hodgin v. North Carolina Public Service Corp.

Clark, C. J. The defendant Public Service Company contended that the defendant was in a place of safety until a few seconds prior to the *451 collision, and that when he changed his position it was too late for the motorman to avoid striking him. There was conflicting evidence on this point, and the jury found on the issues of fact that the defendant Public Service Company was guilty of negligence, and that the plaintiff did not contribute by his own negligence to the injury. The defendant Lassiter & Company contended that the injury was caused by the street car company, and that when the plaintiff was knocked into the street it was too late for the driver of the truck of the "defendant Lassiter & Company to avoid striking him, and contended that the plaintiff was guilty of contributory negligence by walking in the street until he could pass the obstruction. There was much evidence as to the facts concerning this, and as to the details of the occurrence itself, but these were matters for the jury, who have found in response to the issues that the defendant Lassiter & Company was guilty of negligence, and the plaintiff did not by his own negligence contribute to the injury sustained by him from the truck. The plaintiff was struck by the street car as the jury found, by reason of the negligence of the motorman, and upon such findings the Public Service Company was liable. The injuries, however, sustained thereby were slight compared with those inflicted by Lassiter & Company’s heavily laden truck, which the jury have found were caused by the negligence of the driver, it therefore was also liable. There is evidence which the jury found to be true that both the motorman on the street car and the chauffeur of the truck saw the plaintiff walking on the binder dividing the roadway from that part of the road occupied by the street car track, and though seeing him thus hemmed in each party negligently struck him. Both defendants therefore are joint tort feasors, upon the findings of fact. In Gregg v. Wilmington, 155 N. C., 18, where the city permitted its codefendant to pile upon the sidewalk bricks taken from a building being torn down, and the codefendant negligently piled the brick in such a manner as caused the alleged injury, the city was held not responsible in damages unless it permitted the continuance of the negligent act after it was fixed with notice thereof. In that case, it was held that the negligence was that of the codefendant, and the city was not responsible for its previous act in permitting the piling, which was within its discretion. In Ridge v. High Point, 176 N. C., 421, it was held that the city was not liable for an injury caused by its codefendant, because it allowed the latter to operate a street car line. In Barnes v. R. R. and Express Co., 178 N. C., 265, it was held that where the wrongful death was caused by the express company, in the negligent loading of a heavy shaft which would not have produced the injury but for the concurrent negligence of the railroad company in moving the car while being loaded that the defendants were joint tort feasors. *452 Tbe two cases first named are clearly.distinguishable from tbe present, while tbe latter closely resembles it. Tbe authorities are fully discussed in those three cases, and we need not repeat the discussion. On the findings of fact by the jury the injury was caused by the negligence of both defendants contributing thereto. They were joint tort feasors and jointly and severally liable. It was not a case presenting the question of primary and secondary liability, and the charge of the court upon the sixth issue was erroneous, but this does not require a new trial. That issue will be struck out, and the judgment will be modified in accordance with this opinion. Modified and affirmed. Allen, J., dissented from the ruling as to defendant Lassiter.