Dixon v. . Brockwell

Winborne, J. As to appeal by plaintiffs J. B. Dixon, Carl M. Martin and George Wakefield, Jr.: These appellants assign as error, among others, the response of the court to a question from the jury. In this connection it appears from the record that in charging the jury on Wednesday the court instructed the jury in respect to the first issue that if they, the defendant and Martin, “both were guilty of negligence, and their negligence proximately contributed to this event and brought this about and became one of the proximate causes, concurring and cooperating with one another’s negligence, then it would be your duty to *570 answer this Yes.” It also appears that after some deliberation on Friday morning, tbe jury returned into open court, and requested that the charge on the first issue be repeated, — saying that “there seems to be a little bit of misunderstanding on the charge” about what the law is as to negligence. Thereupon, the court proceeded to charge extensively in that respect,- — including among many others an instruction in substance that if the jury should find by the greater weight of the evidence that defendant were guilty of negligence, that became one of the proximate causes of the injuries to plaintiffs Dixon, Carl Martin, Davis and Wakefield and that Frank N. Martin were guilty of negligence, that became one of the proximate causes, concurring with the negligence of defendant, then the jury answer the first issue Yes. Then the court inquired of the jury if there were “any other matters.” "Whereupon, a juror asked this question: “Your Honor, in an issue of this kind'would it be possible to find both parties negligent?”, to which the court replied: “No, sir, you could not.” Exception 19. “Do you mean find. both parties guilty of negligence and answer the issue ?” Juror: “On issue No. 1?” The court: “On issue No. 1 is it possible to find both parties guilty of negligence on issue No. 1? Let me read this issue.” Then the court proceeded to give instruction on the first issue in respect to concurrent negligence of defendant and plaintiff Martin, and then on the second and third issues and on the eighth issue as to damage, if any, Frank N. Martin is entitled to recover. And then the court concluded with the following: “You cannot find Carl M. Martin, J. B. Dixon, George Wakefield, Jr., and A. B. Davis guilty of any negligence. They had no control over either car, the truck or the passenger car. (As the court instructed you, if you answer this issue Yes, you would have to find it was the negligence of the defendant, his solo negligence, that became the proximate cause, or the defendant’s negligence concurring with the negligence of Frank Martin, Frank Martin’s negligence being one of the proximate causes. You would have to find that it was the defendant’s sole negligence, or that it was the defendant’s negligence and Frank Martin’s negligence, concurring, proximately bringing about this injury to these plaintiffs to answer this issue Yes. If you find that it was the sole negligence of Frank Martin and not any negligence of the defendant, of course, you would answer issue No. 1, No, if the defendant did not proximately . . . did not and was not guilty of negligence, proximately bringing about this event).” That portion in parentheses constitutes Exception 23. These plaintiffs contend that the charge, in the respects indicated, among others, is conflicting and calculated to confuse the jury, — particularly when, in answer to the question of the juror as to whether it would be possible to find both parties negligent, in considering the first issue, the court replied: “No, sir, you could not.” After careful con *571 sideration, this Court is of opinion that the charge so given is vulnerable to the attack made upon it. Was the jury to understand that if the jury should find that both the defendant and Frank N. Martin were negligent, and that the negligence of each concurred with that of the other as a proximate cause of the collision, the first issue could not be answered in the affirmative? The meaning is not clear and is susceptible of an interpretation inconsistent with other portions of the charge which are correct statements of the law. Defendant contends, on the other hand, that the charge taken as a whole may not be held for error. However, in this connection, the decisions of this Court uniformly hold that when there are conflicting instructions to the jury upon a material point, the one correct and the other incorrect, a new trial must be granted as the jury, which must take the law from the court, is not supposed to know which is the correct instruction. Hence, we must assume in such cases, in passing upon appropriate exception, that the jury, in coming to a verdict, was influenced by that portion of the charge which is incorrect. S. v. Starnes, 220 N. C., 384, 17 S. E. (2d), 346; Templeton v. Kelley, 217 N. C., 164, 7 S. E. (2d), 380, and numerous other cases cited therein. It is appropriate to say that consideration of this appeal leads to the conclusion that it would be better to try the actions brought by these plaintiffs, passengers in the Frank N. Martin car, separately from the action brought by Frank N. Martin. This is so even though these plaintiffs make no allegation of negligence against Frank N. Martin. They elect to allege a cause of action for actionable negligence only against the defendant, and may recover only if they make good on these allegations, even if Frank N. Martin were negligent also, and that his negligence were a proximate cause of, and concurred in bringing about the collision in question. Hence the issue in their actions is one of negligence of defendant, and proximate cause, and concurring negligence of Frank N. Martin has no place in the trial of their causes. While, on the other hand, in the Frank N. Martin case, there are issues of negligence and contributory negligence which require appropriate instructions. For error pointed out, there must be a new trial on this appeal. As to appeal by plaintiff Frank N. Martin : The judgment from which Frank N. Martin appeals is based upon the verdict on the first issue. Since there is error in respect to that verdict, and there is to be a new trial in the action to which the first issue relates, a new trial in the action brought by him necessarily follows. On appeal by J. B. Dixon, Carl M. Martin and George Wakefield, Jr., New trial. On appeal by Frank N. Martin, New trial.