Wellons v. . Sherrin

Stacy, C. J. The instruction which the plaintiff assigns as error was patterned after the language of the majority opinion when the ease was here on demurrer of the landlord at the Spring Term, 1940, reported in 217 N. C., 534, 8 S. E. (2d), 820. There it was said: “If the defendant Sherrin was in fact at the time participating in the maintenance of the pit or hole located on the premises of the defendants Sappenfield, and the plaintiff offers evidence tending to support the other allegations, then it is for the jury to say whether, in the exercise of ordinary care, it was his duty to provide protection by fence or other devices and to give warning of the danger incident to the existence of the pit.” The court was not submitting a question of law to the jury when he used the expression, “and you further find that that was negligence,” etc. Rather, he was leaving it for the jury to say whether the defendants, in the exercise of ordinary care, had done or failed to do what a reasonably prudent man would have done in the circumstances of the case. Negligence is doing other than, or failing to do, what a reasonably prudent man, similarly situated, would have done. Diamond v. Service Stores, 211 N. C., 632, 191 S. E., 358. The further expression, “or if you are not satisfied about it,” of which the plaintiff complains and cites Willis v. R. R., 122 N. C., 905, 29 S. E., 941, as authority for his position, only had the effect, when taken in connection with other portions of the charge, of saying to the jury that the plaintiff was required to satisfy them of the correctness of his position by the greater weight of the evidence. Speas v. Bank, 188 N. C., 524, 125 S. E., 398. It is not perceived wherein the charge was prejudicial to the plaintiff. Williams v. Woodward, 218 N. C., 305, 10 S. E. (2d), 913. There is no evidence that the landlord participated in the maintenance of the pit. And, of course, if his tenants are not liable, he is not. The verdict and judgment are supported by the record. No error.