Fuller v. Railroad

Walker, J., after stating the case: The instruction given to the jury at the request of the plaintiff was erroneous, as by it the court undertook to decide as matter of law what really was a composite question of law and fact. Whether the animal should have been kept in the car or put in the stable, if the defendant had one at South Rocky Mount, and what food and attention she should have received under the circumstances, were evidently questions of fact for the jury, to be considered by them in passing upon the question of negligence, they being guided in arriving at their conclusion, as to the ultimate fact of negligence, by the charge of the court as to the measure of the defendant’s duty. The evidence was not clear as to whether the defendant had a stable at that place, the witness Gordon having been asked the question, “Has the *483 defendant any stock-pen or stable in South Rocky Mount?” and answered in the affirmative; but we have treated the instruction as if the question had been expressed conjunctively instead of disjunctively, and have assumed that the defendant had a stable there. The instruction distinctly implies that the mare should have been stabled for the night, otherwise there would have been no use in referring to the stable at all. Whether it was better to have kept her in the car or to have put her in the stable, was also a question for the jury to be considered by them in making up their verdict upon the question of negligence. The facts recited in the instruction did not in law constitute negligence per se, but were no more than evidentiary facts. The jury might have decided that the acts and conduct of the defendant did not cause the sickness of the animal, but that the cold was contracted before she was received by the defendant, or was an unavoidable incident of the journey and was not attributable to any negligent act or omission of the defendant. Notwithstanding the facts recited, the defendant may have been free from blame. It is true the judge told the jury they must find that the mare was injured in consequence of the negligent acts of the defendant, which he recited in the instruction; 'but the fault in the charge is that the jury had already been told that certain facts constituted negligence, which the law did not so regard and which the jury, if properly instructed, may have found did not make out a case of negligence under the circumstances. It is not difficult to see how the jury may have been induced to find that the alleged acts of the defendant, recited in the instruction, caused the injury when they had been told that the law characterized them as negligent. They might, in such a case, readily impute the injury to the defendant’s alleged wrongful acts. It may be admitted as an axiom that what is negligence is a question of law, and in this case it is the failure to exercise that degree of care which the nature of the situation and the *484 circumstances suggested and required. The approved meaning of the term is the omission to do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. The duty, thus imposed, is dictated and measured by the particular exigencies of the occasion. The essence of the fault is either in omission or commission, negligence being either active or passive. Railroad v. Jones, 95 U. S., 439; Blythe v. Water Co., 11 Exch., 784; Carter v. Lumber Co., 129 N. C., 203. This embodies what is known as the rule of the prudent man, which we have adopted, and we believe most of the courts of this country have recognized and accepted as the best and the true standard by which to guage responsibility in actions for negligence, and by which to determine whether or not there has 'been actionable negligence, if the injury was the natural and proximate consequence of the act complained of. Negligence is defined as the juridical cause of an injury, and therefore actionable or followed by liability to another, when it consists of sucb an act or omission on the part of a responsible person, as in ordinary natural sequence immediately results in sucb injury. Basnight v. Railroad, 111 N. C., 592; Wharton Neg., see. 73. And it should be added, the party complained of must, by the exercise of ordinary care, have been able to foresee that barm or injury would result. Carter v. Lumber Co., 129 N. C., 203; Raiford v. Railroad, 130 N. C., 597; Frazier v. Wilkes, 132 N. C., 437; Railroad v. McEwen, 38 L. R. A., 134; Drum v. Miller, 135 N. C., 204. It is not intended to say that there may not be facts which, if admitted, established or proved, will constitute negligence as matter of law. We are not dealing with any such question. It is sufficient, in this case, to bold that the court should have submitted the case to the jury upon the evidence and with proper instructions as to what would in law consti *485 tute negligence, leaving tbe jury to find whether there was •negligence or not, and if there was, whether it proximately caused the injury. New Trial.