Moore v. . Parker

Smith, C. J. The defendants’ first instruction was properly refused in the broad and unqualified terms used, and in its application to the testimony in the present case. We adhere to the rule laid down in the recént case of Aycock v. Railroad, 89 N. C., 321, and enunciated in these words, originally proceeding from the pen of Judge Gaston : “ When he (the plaintiff) shows damages from their (the de *280 fendants) act which act, with the exertion of proper care does'not ordinarily produce damage, he makes out a prima facie case of negligence, which cannot be repelled but by proof of care or of some extraordinary accident which renders care useless.” It was not contested but that-the disposition of the stove and the smoke-pipe was the act of the defendants, and that the house was.set on fire, where the pipe passed through the wall; and in this condition the stove was used for some time, in heating, without communicating fire, to the building; so that the previous care and attention of the defendants had prevented any mischief. It devolved upon them, therefore, to explain, with the means possessed by them of doing so, how on this special occasion the fire was communicated, and to repel the inference of a want of that care and vigilance which had hitherto repressed its outbreak, and prevented damage. This duty obviously, under the circumstances, rested upon those who were using this method of warming the room (and must be supposed to know) to show why what had not happened before did happen on this particu-tar occasion, and thereby remove the imputation of negligence. Indeed, we are not prepared to say that the court would have erred in telling the jury that running the pipe through the wall without separating it from the- wood by means of some non-combustible substance intervening, was itself an act ofmegligence, because of the hazard it entailed ; and certainly, it was not error to decline to give the instruction requested, 2. The second instruction was given, and the jury were told that if the plaintiff permitted the stove to be thus placed, or saw how it was and expressed himself satisfied, then the defendants would be relieved from the imputation of carelessness in adjusting the pipe in its place, but they would still be required to take prudent care in the use of the stove. *281 The next three instructions, the subject of exception, embracing all but the last, which has been properly abandoned as untenable, were substantially given, and the giving them cannot be a ground of complaint on 'the part of the appellants. A. party cannot except for error(in the words of Gaston, J., delivering the opinion in Buie v. Buie, 2 Ired., 87), to an instruction which he hath himself prayed. The same proposition has been reiterated in subsequent adjudications. McLennan v. Chisholm, 66 N. C., 100. So a charge substantially such as asked, though not in very words, is sufficient. State v. Scott, 64 N. C., 586; State v. Hargett, 65 N. C., 669. In like manner, when a question of law is erroneously submitted to the jury, and the verdict is such as it would have been if declared by the court in the charge, the error is corrected, and the cause of complaint taken away. Reynolds v. Magness, 2 Ired., 26: Glenn v. Railroad, 63 N. C., 510; Terry v. Railroad, ante 236. If the error assigned presented the appellant’s case in as favorable a light to the jury as if the law had been declared, they cannot, on this ground, have a new trial. Ray v. Lipscomb, 3 Jones, 185; Robbs v. Outlaw, 6 Jones, 174. Applying the facts as presented in the testimony, aside from so much as relates to the alleged contributory negligence of the plaintiff, which is conflicting, it is plain that in laying down the rule to guide the jury in passing upon the question of negligence, instead of telling them w’hetherupon certain facts to be found by them there was or was not negligence, the jury were left free to exculpate the defendants, and in this respect, the charge was more favorable'to them than if the law had been positively declared by the court. While it was the duty of .the jury to accept the judges exposition of the law, they were left unembarrassed and at liberty' to find it for the defendants. *282 The law as declared, is, we think, open to no objection from the defendants, and the jury seemed to have arrived at their Conclusion just as if they had received positive instructions upon the point. The court ought to hate expounded the law just as the jury have understood and acted upon it, and there surely has no harm come to the defendants in consequence. There is no error,' and the judgment must be affirmed. No error. Affirmed.