Holton v. Moore

BeowN, J. The ruling/)! the judge followed the well'settled decisions of this Court. In the recent case of Sasser v. Lumber Co., ante, 242, it is said: “It is settled by the decisions of this Court that, in an action of this character, where the jury find that the plaintiff was injured by the negligence of the defendant, and further find that the plaintiff by his own negligence contributed to his injury, and then assess damages, the plaintiff is [551] not entitled to recover, and tbe defendant is entitled to judgment upon tbe issues. Tbe force and effect of tbe establishing of contributory negligence upon tbe part of tbe plaintiff is only obviated by tbe further finding under a third issue that tbe defendant by tbe exercise of ordinary care could have avoided tbe injury notwithstanding tbe negligence of tbe plaintiff. Baker v. R. R., 118 N. C., 1016; Harvell v. Lumber Co., 154 N. C., 262; Hamilton v. Lumber Co., 160 N. C., 51. In tbe last case Justice Allen says: ‘The plaintiff cannot recover as long as tbe answer to tbe second issue (establishing contributory negligence) stands.’ This case cites and approves Balter v. R. R., sufra, and bolds that tbe respective findings of negligence, contributory negligence, and damages are not insensible and inconsistent, and tbe defendant is entitled to judgment.” To same effect is Carter v. R. R., ante, 244. It is, however, contended by tbe plaintiff that this action is brought under Revisal, sec. 3305, and that contributory negligence is no defense to an action for damages brought under such statute, and that, therefore, be is entitled to judgment upon tbe ‘issues. Tbe statute reads as follows: “If tbe owner of any dog shall know, or have good reason to believe, that bis dog, or any dog belonging to any person under bis control, has been bitten by a mad dog, and shall neglect or refuse immediately to kill tbe same, be shall forfeit and pay $5(3 to him 'who will sue therefor; and tbe offender shall be liable to pay all dam'ages which may be sustained by any one, in bis property or person, by tbe bite of any such dog, and- shall be guilty of a misdemeanor, and fined not more than $50 or imprisoned not more than thirty days.” There is nothing in tbe complaint to indicate that this action is brought under tbe statute. No reference is made to it in tbe pleadings, and the penalty provided in it is not sought to be recovered. Such an action for damages would lie at common law before tbe statute. But we will assume that tbe action is brought under tbe statute, and yet we are of opinion that upon tbe issues tbe court below rendered tbe proper judgment. [552] We are not prepared to bold tbat contributory negligence may not be properly pleaded to an action under tbe statute for tbe actual damages sustained. Suppose tbe injured person, an adult in full possession of bis faculties, knowing tbe condition of tbe dog, recklessly, carelessly and unnecessarily takes bold of tbe animal, and is bitten. Would bis negligence be no bar to a recovery? In tbe case of Leathers v. Tobacco Co., 144 N. C., 347, tbis Court quoted with approval tbe following language from Toby v. R. R., 94 Iowa, 256 : “It is a general rule tbat tbe doing of a prohibited act, or tbe failure to perform a duty enjoined by statute or ordinance, constitutes negligence, for wbicb tbe party guilty of such act or omission is liable unless excused by tbe contributory negligence of tbe one to whose person or property it is done. Contributory negligence will defeat recovery, even though tbe negligent act consisted in tbe violation of a statute or ordinance, and such violation is held to be negligence per se." 29 CyC. of Law and Procedure, page 508, and many cases cited in note. However tbat may be, we do not think tbe point is properly before us upon tbis record, as tbe only exception taken on either trial and tbe only assignment of error is to tbe refusal of tbe trial judge to render judgment for tbe plaintiff upon tbe issues. Tbe defense of contributory negligence is set up in tbe answer, and on both trials evidence'was introduced in support of tbe plea without objection or exception. Tbe issue of contributory negligence was framed and submitted to tbe jury on both trials without any objection or exception whatever by tbe plaintiff, and on both trials tbe judge charged tbe jury fully on tbat issue, and tbe plaintiff took no exception and has assigned no such error. He let two trials proceed to tbe rendition of a verdict without making any such point, and conducted each one of them upon tbe theory tbat contributory negligence is a proper defense. ■ It was tbe plaintiff’s duty to except during tbe trial to tbe introduction of such evidence, to tbe submission of such an issue, [553] and to tbe charge of tbe court, and to assign tbe rulings as error. He failed to do so. Upon tbe issues as answered, we tbink bis Honor properly rendered judgment for tbe defendant. Affirmed.