Nathan v. Charlotte Street Railway Co.

Avery, J.: Where the testimony raises the question whether there was any negligence on the part of the defendant intervening after the alleged contributory negligence of the plaintiff, it is better to leave out of the first and incorporate only in the third issue (as they are usually •drawn) the inquiry whether the plaintiff’s negligence was the proximate cause of the injury. This would make the •ordinary form of the three issues in such cases as follows : “ 1. Was the defendant negligent? “2. Did the negligence of the plaintiff contribute to cause the injury? “3. Notwithstanding the negligence of the plaintiff, could the defendant by the exercise of reasonable care have avoided the injury ? ” Where the testimony raises the question whether a culpable act of the defendant intervening after the act constituting the alleged contributory negligence was the proxi *1069 mate canse of the injury, in the sense that it was an omission to discharge a legal duty, the performance of' which would have averted it, it would be manifest, if the point had never been passed upon before, that an issue-involving that specific inquiry would be one raised by the-general allegation that the injury was caused by the-defendant’s want of reasonable care and the defendant’s denial thereof. In contemplation of law, the injury is not attributed to the wrongful act unless it is shown to be the-immediate and proximate, cause. So that the allegation-by the plaintiff that the injury was due to the-defendant’s carelessness, and the denial of that, coupled with the averment by defendant that the contributory negligence of the-plaintiff was the cause, necessarily involves the question whether the defendant negligently omitted to avail itself' of the last clear chance to avoid the accident by the performance of a legal duty. But in Baker v. Railroad, decided at this Term, it was held not only that the court might submit such an issue under pleadings like those in the case at bar, but that if the plaintiff could show that by the refusal of the court to submit it, the court deprived him of the opportunity to present some view of the law arising out oí the evidence to the jury, then it would be no longer discretionary with the judge whether he would permit it-to be passed upon, but would become the right of the plaintiff to demand that he should be. In Tillett v. Railroad, decided at this Term, it was held to be within the sound discretion of the court to- submit or refuse a specific issue involving the question whether the plaintiff' was a passenger, because “the plaintiff’s right to board the train must be necessarily shown in order to make out a prima facie case of negligence.” Prior to that time the-power of the court, as a general rule, to-determine whether one, two or three issues should be submitted, in cases like. *1070 that before us, had been repeatedly recognized in a long line of cases. Pickett v. Railroad, 117 N. C., 616; McAdoo v. Railroad, 105 N. C., 140; Lay v. Railroad, 109 N. C., 410; Denmark v. Railroad, 107 N. C., 185; Scott v. Railroad, 96 N. C., 428. There was no error, therefore, in refusing to strike out that issue. The defendant “restricts his motion” for a new trial “to the third issue and to the judgment which should be rendered upon the verdict, and does not except to the findings of the jury upon the first, second and fourth issues.” While there is abundant testimony to warrant the submission of that issue by the court, and, if believed, the finding'of the jury in response to it, it is needless, in view oí the peculiar nature of the motion, to collate or discuss it. In Tillett v. Railroad, supra, the ruling in the same case when formerly before the Court on appeal (115 N. C., 602) was re-affirmed, and it was held, as in many eases previously decided, to be within the sound discretion of the appellate Court to determine whether a new trial should be restricted to one or more or all of the issues passed upon by the jury. Holmes v. Godwin, 69 N. C., 467; S. C., 71 N. C., 309; Burton v. Railroad, 84 N. C., 201, 192; Boing v. Railroad, 91 N. C., 199; Lindley v. Railroad, 88 N. C., 547. In the same way it has been held that the granting or refusal of a new trial by the appellate Court for newly discovered evidence is an exercise of discretion for which the Court will give no reason. Clark v. Riddle, decided at this Term; Sledge v. Elliott, 116 N. C., 712; Brown v. Mitchell, 102 N. C., 347. In Merony v. McIntyre, 82 N. C., 105, it was held error in the nisi prius judge to grant a partial new trial upon a suggestion that, by improper influence, the jury had been induced to change their verdict upon one of the issues. The Court there held that while, as a general rule, *1071 the court might grant a partial new trial upon the inquiry of damages, or upon a single issue where the evidence bearing upon it is separable from and does not hinge upon that bearing upon the other issues, it was nevertheless always within the sound discretion of the court, where a new trial was granted, to make it general instead of partial. When, therefore, the defendant’s counsel restricted their request to a single issue, they appealed to the discretion of the court to open the verdict only in part. Fairly interpreted, the motion meant that if the-judge concluded that the ends of justice would be best subserved by granting a new trial upon all of the issues, they did not wish him to interpose. Non constat but that the judge would, upon an appeal to his discretion, without attempting to impose a limit to its exercise, have set aside all of the findings. Iu this view of the matter, his ruling must be treated as a refusal to disturb the verdict at all, unless left at liberty to set aside the whole of it. While the trial judge may work out, of his own accord, or even on suggestion of one of the parties, the same result, the appellate Court will never recognize the right of a party to demand, without regard to the views of the court, that such findings of the jury as are favorable to him shall remain undisturbed, while only another, or others, which are prejudicial to him, shall be reviewed on appeal from the refusal of a motion for a new trial. The motion of counsel must be for a new trial, and while he may suggest or ask that it be partial, he cannot demand it as a right, and by his motion attempt to restrict the action of the court to one or more issues, without forfeiting his right to have the refusal of the motion reviewed. There was no error. Affirmed.