Sample v. . Spencer

Denny, J. Plaintiff’s intestate was a guest passenger and according to the evidence had no interest in the car nor control over the driver. Therefore, under the decisions applicable to this case, the negligence of the driver will not be imputed to plaintiff’s intestate. Albritton v. Hill, 190 N. C., 429, 130 S. E., 5; Gaines v. Campbell, 159 Va., 504, 166 S. E., 704. There is evidence of negligence on the part of the driver of the car and of the defendant. Whether the negligence of the defendant concurred with the negligence of the driver of the car, and constituted the efficient cause of the injury to plaintiff’s intestate, is a question for the jury. The plaintiff, in apt time, excepted to the charge, in that the court failed to declare and explain the law arising upon the evidence as required by C. S., 564, especially in that the court did not declare and explain the doctrine of concurrent negligence and apply such law to the facts in this case. The court below, in its charge, fully instructed the jury upon the law and the evidence in respect to plaintiff’s contention that the negligence of the defendant was the sole proximate cause of the death of plaintiff’s intestate. It likewise fully instructed the jury upon the contention of the defendant that the negligence of the driver of the ear was the sole proximate cause of the death of plaintiff’s intestate. However, the court did not charge the jury that if the negligence of the defendant contributed to the injury and death of plaintiff’s intestate as one of the proximate causes thereof the defendant would be liable notwithstanding the negligence of the driver of the car. The exception is well taken *584 and must be sustained. This view is in accord witb the opinion and authorities cited in the case of Harvell v. Wilmingion, 214 N. C., 608, 200 S. E., 3 67, where the factual situation was similar to that of the instant case. In the above case the Court said: “Where, in this type of eases, there is evidence of negligence on the part of the defendant and likewise of negligence of a third party, which negligence is not attributable to the plaintiff, the defendant is liable if its negligent act constituted one of two proximate causes of the injury. If the defendant’s negligence contributed to plaintiff’s injury as one of the proximate causes thereof the defendant is liable notwithstanding the negligence of the third party. Albritton v. Hill, supra. If the negligence of the owner and driver of the car was the sole and proximate cause of plaintiff’s injury the defendant would not be liable; for, in that event, the defendant’s negligence would not have been one of the proximate causes of the plaintiff’s injury. Bagwell v. R. R., 167 N. C., 615, 83 S. E., 814; Evans v. Construction Co., 194 N. C., 31, 138 S. E., 411. If, however, the negligence of the city concurring with the negligence of the third party constituted the proximate cause of plaintiff’s injury, it would be liable, because the defendant cannot be excused from liability unless the total causal negligence or proximate cause be attributable to another or others. When two efficient proximate causes contribute to an injury, if defendant’s negligent act brought about one of such causes, it is liable. Evans v. Construction Co., supra; Wood v. Public-Service Corporation, 174 N. C., 697, and cases there cited; Albritton v. Hill, supra; Hanes v. Utilities Co., 191 N. C., 13, 131 S. E., 402. The law. of concurrent negligence, as thus stated, is applicable to the conflicting evidence in this case. The plaintiff has a right to rely thereon, and it was the duty of the court to apply this doctrine of the law to the evidence, and to declare and explain the law of concurrent negligence as it applied to the evidence without any special prayer. It is part of the law of the case. The fact that the jury found by its verdict that the plaintiff was not injured by the negligence of the defendant city does not render the failure of the court to charge on the doctrine of concurrent negligence immaterial or harmless. The jury was given the choice of finding either that the negligence of the city, if they found such existed, was the sole proximate cause of plaintiff’s injury, or that the negligence of the driver, if such was established, was the sole proximate cause. The jury was not given an opportunity to consider the évidence under the law which permitted it to find that the negligence, if any, of the city was only one of the proximate causes of plaintiff’s injury and that such negligence, concurring with that of the driver, constituted the efficient proximate cause of plaintiff’s injury. The evidence in this case is such as entitles the plaintiff to have this view of the law stated and explained and applied to the evidence by the judge in the trial of his cause.” *585 We are advertent to tbe ease of Smith v. Bonney, 215 N. C., 183, 1 S. E. (2d), 371, where this Court said: “Tbe case was tried upon tbe theory that tbe negligence of tbe defendant was tbe proximate cause of tbe death of tbe intestate, tbe allegation of tbe complaint being that tbe automobile of Charlie Smith, in which tbe intestate was a passenger, was being operated in a careful and lawful manner, and that tbe collision was caused by tbe negligent operation of tbe defendant’s automobile. Hence, tbe issue of tbe concurrent negligence of Charlie Smith and of tbe defendant was not raised, but only tbe issue of tbe negligence of tbe defendant.” However, in tbe instant ease tbe issue was raised in tbe trial below by tbe defendant, and having been raised, tbe plaintiff was entitled to have tbe court in its charge to tbe jury explain tbe law under tbe doctrine of concurrent negligence and apply such law to tbe facts in tbe case. We deem it unnecessary to discuss tbe other exceptions, since they may not arise on a new trial. New trial.