Turrentine v. . Richmond Davidson Railroad

Smith, C. J-. (after stating the facts as above). We have not adverted to the numerous exceptions scattered along the way in the progress of the trial to the admission of evidence the jury were allowed to hear, nor have we given more than a summary statement of the matter in controversy, since the response of the jury to the. inquiries they were directed to make, furnish sufficient reason without an examination of the other errors assigned, for reversing the judgment and submitting to another jury, issues put in a form that will elicit the information needed in determining the case upon its merits. The present findings do not enable the court to see whether there was that concurrent negligence of the plaintiff, which, associated with that of the defendant, brought about .the injury, and in consequence denies him redress. The proper inquiry was not only as to the defendant’s neglect in warming the car used by the plaintiff, but whether the plaintiff himself,. by the want of proper care and attention, such as a prudent man would and ought to take for his own safety against the effects of being in an unwarmed room, did not bring the injury on himself or directly, by his own neglect, contribute to it. If he did, he is not entitled to recover, under the established rule, that notwithstanding the previous negligence of the defendant, the plaintiff cannot maintain his action when, in the exercise of reasonable care and attention on his own part, he might have avoided the injury sustained. To illustrate the proposition of law in its application to the present case. If the plaintiff, entering the car and finding it not warmed, neglected to provide adequate clothing for such an atmosphere, and recklessly and needlessly exposed his insufficiently clothed person to blasts of cold air, and this was the direct and immediate cause of his injury, he could not hold the defendant responsible for consequences that proceed directly from *641 himself and his own indifference. The question for the jury, in the words of an eminent English Judge, is “ whether the damage was occasioned entirely by the negligence or improper conduct of the defendant, or whether the plaintiff himself so far contributed to the misfortune, by his own negligence or want of ordinary and common care and caution, that but for such negligence and want of ordinary care and caution on his part, the misfortune would not have happened. In the first place the plaintiff would be entitled to recover, in the latter not; as but for his own fault the misfortune would not have' happened.” And in explanation of the proposition he adds: “ Mere negligence or want of ordinary care or caution would not, however, disentitle him to recover, unless it were such that but for that negligence or want of ordinary care and caution, the misfortune would not have happened; nor if the defendant might, by the exercise of care on his part, have avoided the consequences of the neglect or carelessness of the plaintiff.” Wightman, J., in Tuft v. Warman, 94 Eng. Com. Law Rep., 573. The rule is thus so fully and definitely expressed as to require no further comments from us. The counterpart of this rule is declared in Gunter v. Wicker, 85 N. C., 310, Owens v. Railroad, 88 N. C., 502, Farmer v. Railroad, Ibid., 564, and in Aycock v. Railroad, 89 N. C., 321, that the defendant will be liable, notwithstanding previous negligence of the plaintiff, if, when the injury was done, it might have been averted by the exercise of reasonable care and prudence on the part of the defendant. The jury say that the company neglected to provide a suitable room in the coach for the use of the plaintiff, that this negligence was a partial cause of the plaintiff’s injury, but the injury was not brought about in the manner charged. How can it be seen how far and how directly the plaintiff contributed to his own injury, and whether this participation was such as to absolve the company from liability for the results? The finding does not point out the efficient and direct cause of the plaintiff’s ill health *642 and suffering so that it can be determined how far his disregard of the dictates of prudence for the preservation of his health was the direct or an active contributory cause of his attack. The issues should have been so framed as to distinctly present the case in the aspect suggested, and especially to show the extent of •his contributory agency in producing the result, so that the rule of law could be applied to the facts, and the company’s responsibility in the premises decided. The judgment, while the only one that could be rendered on the findings, rests, nevertheless, upon a confused and unsatisfactory verdict, and ought not to stand, as injustice may be done to the plaintiff. Pursuing the same course as in Bank v. Alexander, 84 N. C., 30, and Mitchell v. Brown, 88 N. C., 156, we must reverse the judgment and direct the award of a venire de novo to try issues drawn up in proper form, and to this end let this be certified. Error. Reversed.