Baker v. N. & S. Railroad

Walker, J., after stating the case: The defendant asked the witness Garrett, “What was said by the plaintiff, in the conversation with him, as to why the horse was driven close to the track ?” If the defendant’s counsel bad not indicated what they expected to elicit from the witness by this question, the ruling of the Court excluding it might perhaps be sustained upon the principle that the competency and materiality of proposed testimony, which is ruled out, must appear before we can see that .any error has been committed by the Court. Knight v. Killebrew, 86 N. C., 400; Sumner v. Candler, 92 N. C., 634; State v. McNair, 93 N. C., 628; State v. Skidmore, 109 N. C., 795; State v. Dula, 61 N. C., 437. But here the defendant’s counsel stated, as the record afterwards shows, that the question was asked for the purpose of showing that the horse and buggy were stopped *41 at the crossing, as contended by the defendant and testified by the fireman, it appearing by the previous testimony of the witness Snowden, who beard the conversation between the plaintiff and Garrett, that the former bad so stated in that conversation. Even if the evidence was merely cumulative to that of Snowden, it was nevertheless competent and relevant, and being tbat of the witness who bimself bad the conversation with the plaintiff, it was perhaps entitled to greater weight and would receive more consideration from the jury than that of Snowden. The prior testimony of Snowden clearly shows its relevancy, even if the statement of counsel as to what they expected to prove was not in itself sufficient for that purpose. The offer of proof included not only the declaration of Cecil Williams, m via, as to where be was going, which was part of the res gestae (State v. Dula, supra), but the further fact that be actually stopped at the crossing. We were not told why the evidence was excluded. It was not hearsay, and being otherwise competent and material, because it tended to sustain the defendant’s theory as to bow the injury was caused, it should have been admitted. The general charge of the Oourt in respect to the degree of care required of the defendant’s servant in approaching the crossing with the train, would perhaps have been fully sufficient in the absence of any request for more specific instructions. Boon v. Murphy, 108 N. C., 187; State v. Jackson, 13 N. C., 563; Patterson v. Mills, 121 N. C., 258; Cowles v. Lovin, 135 N. C., 488; Yow v. Hamilton, 136 N. C., 357. It is also true tbat the Oourt is not obliged to adopt the very words of an instruction asked to be given, provided in responding to the prayer it does not change the sense or so qualify the instruction as to weaken its force. Brink v. Black, 77 N. C., 59; Chaffin v. Manufacturing Co., 135 *42 N. C., 95. These are mies wbicb are observed in all appellate courts. But it is an equally well-establisbed rule that if a request is made for a specific instruction, wbicb is correct in itself and supported by evidence^ the Court, while not required to adopt the precise language of the prayer, must give the instruction, at least in substance, and a mere general and abstract charge as' to the law of the case will not be considered a sufficient compliance with this rule of law. Knight v. Railroad, 110 N. C., 58; Chesson v. Lumber Co., 118 N. C., 59; State v. Dunlop, 65 N. C., 288; Young v. Construction Co., 109 N. C., 618. We have held repeatedly that if there is a general charge upon the law of the case, it cannot be assigned here as error that the Court did not instruct the jury as to some particular phase of the case, unless it was specially requested so to do. Simmons v. Davenport, 140 N. C., 407. It would seem to follow from this rule, and to be inconsistent with it if we should not so bold, that if a special instruction is asked as to a particular .aspect of the case presented by the evidence, it should be given by the Court with substantial conformity to the prayer. We have so distinctly held recently in the case of Horne v. Power Co., 141 N. C., at p. 58, in wbicb Justice Connor, speaking for the Court and quoting with approval from State v. Dunlop, 65 N. C., 288, says: “Where instructions .are asked upon an assumed state: of facts wbicb there is evidence tending to prove, and thus questions of law are raised wbicb are pertinent to the case, it is the duty of the Judge to answer the questions so presented and 'to instruct the jury distinctly what the law is, if they shall find the assumed state of facts; and so in respect to every state of facts which may be reasonably assumed upon the evidence.” Whether the horse and buggy were on the crossing and the dangerous situation of the plaintiff and his companions was *43 observed or could have been discovered by the engineer, when the engine first came in view, so that it could have been stopped in time to prevent the collision; or whether when first seen by the engineer the horse was standing near the crossing, apparently under the control of its driver, and continued in that position until it was too late for the train to be stopped before reaching the crossing (Markham v. Railroad, 119 N. C., 715), were the two alternative phases presented by the evidence, and the defendant had the right by a special instruction to require the Court to direct the attention of the jury to the theory upon which it relied, provided it. was supported by evidence, and we think it was. The Court should, in response to the prayer, have instructed the jury specially as to the law arising upon the recited facts, if they should find them to exist, and in refusing to do so there was error. Savage v. Davis, 131 N. C., 159. The fact that the Court gave the instruction on the third issue did not cure the error in refusing it on the first, as the jury did not answer the third issue at all, having found that there was no contributory negligence. The instruction on the third issue, therefore, was of no avail to the defendant, and its liability was left to depend solely upon the response to the first issue, without any definite instruction as to proximate cause or the last clear chance having reference to the special' facts of the case. It is unnecessary to consider the remaining questions, as they may not again be presented. It may be said, though, upon the issue as to contributory negligence, that if the act of Cecil Williams in driving to a point near thé crossing for the purpose of “gentling” his horse was negligence on his part, it cannot be imputed to the plaintiff, who was merely riding with him in the buggy as his guest, and unless the plaintiff was otherwise negligent, the finding of the jury on *44 the second issue was correct. The doctrine of imputed negligence is so ably and exhaustively discussed by Justice Douglas in Duval v. Railroad, 134 N. C., 331, a case much like this one, that we are satisfied simply to refer to that case without further comment. There must be .another trial because of the errors above pointed out. New Trial.