Alexander v. Richmond & Danville Railroad

MacRae, J.: It was admitted on the trial that the defendant had been negligent. The contention was principally upon the second issue, which involved the question of contributory negligence. As stated in defendant’s brief, “The only question, then, is were the instructions warranted by the evidence, and, if so, were they substantially given in the charge ? ” There seems to be no error in the charge unless there was a failure on the part of his Honor to give some instruction which defendant requested, and to which it was entitled; we will, therefore, examine the prayers for instruction with the responses and exceptions thereto in connection with the general charge. The second prayer was given with the exception of the last clause thereof, which was, “ and the answer to the second prayer (evidently meaning issue) should be, ‘Yes.’ ” We do not appreciate the reasons of his Honor for refusing to give this portion of the instruction, as it was the corollary of the proposition laid down and was entirely proper to have been given. But we must presume that the jury were intelligent enough to understand plain language: the question was whether the plaintiff contributed to the injury [732] by her own negligence; the instruction was: “If the plaintiff, by the exercise of her senses, could have heard the approaching engine and failed to do so, and her injuiy was caused thereby, it was negligence on her’part.” While it was proper to add the conclusion asked for, it was not nec-essaiy, as to the mind of any man of ordinary comprehension it followed as of course. We cannot see that the' failure to give it was calculated to mislead the jury or in any manner prejudice the defendant. The sixth prayer for instruction was responded to in the same manner, the concluding portion being omitted and the words “it would be negligence” substituted. And what we have said with regard to the response to the second prayer will apply with equal force to the sixth. In the same connection we will consider the fourth and fifth prayers with the responses thereto of his Honor. The instructions were given in the words of the prayers except as to the conclusions, “that the answer to the second issue should be, ‘Yes,’” for which his Honor substituted the words “she cannot recover.” It is true that this Court has repeatedly held that it is not error in the trial Judge to refuse an instruction upon an issue directed to the ascertainment of a fact that in a certain event the plaintiff is not entitled to recover. McDonald v. Carson, 94 N. C., 497; Farrell v. Railroad, 102 N. C., 390; Baker v. Brem, 103 N. C., 72. We reiterate the expressions heretofore used upon this subject, but it by no means follows when the instruction has been given in the words of the prayer upon the facts involved that because the conclusion is in this objectionable form there is such error as will entitle the defendant to a new trial. There is no complication in this case which would make it likely that the jury could be confused by this instruction. It could bear no other construction than that if they found the facts as stated there was contributory [733] negligence on the part of the plaintiff. The instruction as requested is in the approved formula, but unless the jury have been misled, or it was calculated to mislead them, no harm could have come to defendant. We cánnot see how any intelligent mind could hesitate in reaching a right understanding of the charge in this respect. Wo consider the instruction given in answer to the third prayer as fully as strong as the defendant was entitled to. It was in evidence that the accident occurred at the crossing of a public highway. It may be questionable whether the defendant had the right to leave its cars, except for necessary delays in crossing, upon it at all. Certainly it was its duty to have left open a sufficient passway for the public. Harrell v. Railroad, 110 N. C., 215. It is contended under the seventh and 7a prayers that the duty of the plaintiff under the circumstances of this case was to have got out of the buggy and gone to a point beyond the cars on the side-track where she could have seen up and down the track, or at least to have stopped to look and listen for an approaching engine or .train. Ilis Honor announced the general principle in that part of his charge which immediately precedes the first exception, and in that part which is covered by the first and second exceptions applied it to this case. The general principle was that she had the right to use the public street across the railroad track of defendant, but she did not have the right to carelessly undertake to pass immediately before a moving engine, if she could, bjr taking reasonable precaution, have known of its approach. The application seems to have been fairly made. Although no testimony is reported to us that would warrant the inquiry whether she was motioned to by the helper on the engine and told to hold up, yet the wdiole of that part of the charge just referred to was full and presented the questions of uegli734 gence or caro, and wo see nothing in it of which the defendant can justly complain. We cannot hold with the defendant that it was necessary for the plaintiff to do more than to check up slowly and look and listen, and endeavor to ascertain whether there was an approaching engine. The public knew, the ordinance required, that the approach of an engine should be heralded by the signal of the bell. According to the testimony of defendant’s. witness this necessary precaution was omitted. -And if the plaintiff’s testimony was believed she did “hold up slow,” and’hearing no bell, which she had heard on the evening previous notwithstanding the noise of the machinery on each side of her, concluded there was no engine approaching and drove on. Hinkle v. Railroad, 109 N. C., 472. The eighth prayer was not given in full, but that portion which was not given had already in substance been given in the instructions in response to the second prayer. Where the instruction has once been given, it is not ordinarily incumbent upon the Judge to repeat it; and there is scarceljr a volume of our Reports in the past ten years which has not declared that the instruction need not be in the words of the prayer if there is a substantial compliance therewith. The ninth prayer was a general proposition which was fully covered in the instructions given. The tenth and twelfth were properly refused, and the issue as to contributory negligence left to the jury. If we take it that the eleventh prayer was not given, his Honor not being able to say distinctly, from his ■ notes or recollection, that it was given, we do not think the defendant had cause of complaint, for his Honor had already instructed the jury as to the duty of the plaintiff to use reasonable and proper care for her recovery in such manner as to indicate that unless such care was taken the plaintiff could not recover at all, thus going further than the [735] defendant asked. And this applies to the prayer marked “10a.” Upon the thirteenth and last prayer the testimony was that the plaintiff was herself a practicing physician; that she did not feel the pain until about half an hour after the accident; that she went on to see her patient, and when she got home she had a nervous shock, and her father, who was also a physician, and Dr. Meisenheimer were called in the same evening; that she had not been kept in the house nor had she carried her arm in a sling; that she continued to practice her profession and to drive with her right hand, the one that was hurt. It was also in evidence that it would have been proper treatment for her to have carried her arm in a sling and to have rested. There was also evidence as to the character of the injury. "We think his Honor properly left the question to the jury under appropriate instructions, and when we advert to that part of the charge which bore upon this point, and which we think was warranted by the testimony, we think it was not error to refuse the thirteenth prayer. Patterson’s Ry. Accident Law, sec. 397. Upon the whole, we conclude that the case has been fairly and intelligently tried; that the failure to give the conclusions asked in several prayers and the phrases substituted therefor, while in those in which his Honor used the words “she cannot recover” it is objectionable, were not calculated to and did not prejudice defendant’s case. "We do not deem it necessary to cite the very numerous authorities on the subject of contributory negligence, ever increasing in volume. The general doctrine is so well established that the only labor is in the application thereof to the case presented. There is no error, and the judgment is Affirmed.