Oates v. . Herrin

Adams, J. In Sasser v. Lumber Co., 165 N. C., 242, the jury in response to the first three issues found that the plaintiff bad been injured by the negligence of the defendant; that the plaintiff by bis own negligence bad contributed to bis injury, and that be bad not assumed the risk of being injured; and in response to the fourth issue the jury assessed the plaintiff’s damages at fifteen hundred dollars. Tbe plaintiff entered a motion to set aside the verdict on the ground that the answers to the several issues were inconsistent and contradictory. Tbe motion was denied, and in affirming a judgment for the defendant this Court said: “It is settled by the decisions of this Court that, in an action of this character, where the jury find that the plaintiff was injured by the negligence of the defendant, and further find that the plaintiff by bis own negligence contributed to bis injury, and then assess damages, the plaintiff is not entitled to recover, and the defendant is entitled to judgment upon the issues.” This statement of the law was approved in Holton v. Moore, 165 N. C., 549, decided a few weeks after the opinion in Sasser’s case bad been written. In the cases just cited the verdicts were accepted by the court and entered of record; but in the case before us the judge, under an impression (created by inconsistent answers to separate issues) that the jury bad not understood bis charge, gave additional instructions and directed the jury to retire for further consideration. His right to pursue this course is established. S. v. Whitaker, 89 N. C., 473; Ayscue v. Barnes, 190 N. C., 859. But there is a fatal error in the charge. These instructions were given: “If you answer the first issue No and the second Yes, you will not go any further, but if you answer the second No, then you will consider the third; if you answer the third No, you will go to the fourth. If you answer the first issue Yes, second No, third No, then you will proceed to .the fourth issue and say what you find the damages to be. I want to make this plain to yo'u: If you answer the first No, or if you answer it Yes, and second No, and third Yes, you don’t go any further, because if be'was injured by bis own negligence be could not *174 recover, or if be was injured by any danger or risk incident to bis employment be cannot recover.” To tbe latter instruction tbe defendant excepted. When upon tendering the first .verdict, the jury were requested to retire, this instruction was given: “I told you if you answered the first issue Yes and the second issue No, and the third issue No, then you would go to the fourth issue, and if you should reach that issue you must specify in dollars and say bow much.” We find no instruction as to the effect on the fourth issue of an affirmative answer to each of the first two issues. It was the duty of the judge to give this instruction, without a special prayer, because it was a substantive and not a subordinate feature of the trial, and the exceptions present the question of a failure to enlighten the jury on this aspect of the evidence. S. v. O'Neal, 187 N. C., 22; S. v. Merrick, 171 N. C., 795. For this reason there must be a new trial. Other exceptions raise serious questions which it is unnecessary to consider. We take occasion to express our disapproval of the form in which the first two issues were submitted to the jury. They should have been framed so as to enable the jury specifically to find whether the plaintiff bad been injured by the negligence of the defendant as alleged in the complaint, and whether the plaintiff by bis own .negligence bad contributed to bis injury as alleged in the answer. New trial.