McMillan v. Atlanta & Charlotte Air Line Railway Co.

PeR CuitiAM. There was no issue as to contributory negligence, and there was no such question in the case, as it was not tried upon that theory, but rather upon the question of proximate cause. We have [855] examined tbe charge carefully and find it to be an accurate statement of tbe law as applicable to tbe facts, and it was in exact accordance with tbe principles as laid down by this Court in Crompton v. Ivie, 126 N. C., 894, and Bagwell v. R. R., 167 N. C., 611. See, also, 2 Exiling Case Law, p. 1205. Tbe questions were as to who was negligent and as to whose negligence was tbe proximate cause of tbe intestate’s death, unaffected by any contributory negligence on bis part. This controversy was submitted to tbe jury clearly and explicitly, with a fair and impartial statement of tbe several contentions and a correct application of tbe law to tbe. facts as tbe jury might find them to be, following closely tbe above cited cases. Tbe court instructed tbe jury that “There is no question of contributory negligence in tbe case, since tbe law does not impute tbe negligence of tbe driver of tbe automobile to plaintiff’s intestate/’ The rules in regard to positive and negative testimony (S. v. Murray, 139 N. C., 540; Rosser v. Bynum, 168 N. C., 340), and the duty of tbe engineer to persons on or near tbe track of a railroad, were properly stated by tbe court and with apt illustration. Byrne v. R. R., 113 N. C., 558; Treadwell v. R. R., 169 N. C., 694; 33 Cyc., 800. If tbe contentions of tbe respective parties were incoi’r rectly given, it was required of plaintiff that tbe judge’s attention should be called to tbe error in due time, so that be might correct it. Nevin v. Hughes, 168 N. C., 477. If tbe defendant desired that tbe court submit to the jury any special theory of tbe case, which was supported by evidence, be should have asked for an appropriate instruction. Penn v. Ins. Co., 160 N. C., 399. But tbe contentions of tbe parties were fully and fairly stated to tbe jury with proper discrimination as to their bearing upon tbe issues, and plaintiff has no cause to complain on this score. There are some questions of evidence, but none of them, had there been any error, is of importance enough to warrant a reversal. Tbe judge was correct in all these rulings. As to some of tbe questions excluded there was no sufficient indication of what tbe witness would have answered, and others bad no substantial relevancy to tbe case. Tbe evidence admitted on plaintiff’s objections was clearly competent. Tbe requests for instructions as to contributory negligence were given in tbe charge to tbe extent that plaintiff was entitled to them. Tbe negligence of tbe driver was permitted to be considered by tbe jury only upon the question of proximate cause, and this view is sustained by Crampton v. Ivie, supra, and Bagwell v. R. R., supra. Tbe subsequent changes in signals or. warnings for additional safety were properly excluded under tbe circumstances as proof of negligence. Precautions against tbe future cannot be considered as an admission of actionable negligence in the past. R. R. v. Hawthorne, 144 U. S., 202 (36 [856] L. Ed., 405). The Court said in that case: “A person may have exercised all the care which the law required, and yet, in the light of his new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards. The more careful a person is, the more regard he has for the lives of others, the more likely he would be to do so, and it would seem unjust that he could not do so without being liable to have such acts construed as -an admission of prior negligence. We think such a rule puts an unfair interpretation upon human conduct, and virtually holds out an inducement for continued negligence.” 30 Minn., 465, 468. The same rule appears to be well settled in England. In a case in which it was affirmed by the Court of Exchequer, Baron Bramwell said: “People do not furnish evidence against themselves simply by adopting a neiu plan in order to prevent the' recurrence of an accident. I think that a proposition to the contrary would be barbarous. It would be, as I have often had occasion to. tell juries, to hold that, because the world gets wiser as it gets older, therefore it was foolish before.” Hart v. R. R., 21 Law Times (N. S.), 261, 263. The Court also said in that case (R. R. v. Hawthorne, supra) : “Upon this question there has been some difference of opinion in the courts of the several States. But it is now settled, upon much consideration, by the decisions of the highest courts of most of the States in which, the question has arisen, that the evidence is incompetent, because the taking of such precautions against the future is not to be construed as an admission of responsibility for the past, lias no legitimate tendency to prove that the defendant had been negligent before the accident happened, and is calculated to distract the minds of the jury from the real issue, and to create a prejudice against the defendant,” citing many cases, and, among others, Morse v. R. R., 30 Minn., 465; Corcoran v. Peekskill, 108 N. Y., 151; R. R. v. Clem, 123 Ind., 15. Part of the above quotation was taken from the.opinion of that learned and able jurist, Judge Mitchell, delivered by him in Morse v. R. R., supra. We adopted the same rule in Lowe v. Elliott, 109 N. C., 581, and approved what is above quoted from opinion of Mitchell, J., in Morse v. R. R., citing three other cases, Dougan v. Transportation Co., 56 N. Y., 1; Sewell v. Cohoes, 11 Hun., 626, and Baird v. Daily, 68 N. Y., 547. The case of Lowe v. Elliott was approved in Myers v. Lumber Co., 129 N. C., 252; Aiken v. Mfg. Co., 146 N. C., 324; Tise v. Thomasville, 151 N. C., 281; Boggs v. Mining Co., 162 N. C., 393. We do not say tjiat there may not be peculiar cases in which such testimony may be relevant, but this is not one of them. Lowe v. Elliott, supra. We have admitted such evidence under special circumstances. Pearson v. Clay [857] Co., 162 N. C., 224, and in Boggs v. Mining Co., supra, it was stated that the general rule as laid down in Lowe v. Elliott is subject - to certain exceptions, which do not extend, as we have said, to this kind of case. We have considered the record in this appeal most carefully in view of the commendable zeal of and the able presentation of it here by counsel for plaintiff, but we have been unable to conclude otherwise than that the learned judge who presided at the trial committed no error, but in every respect thoroughly safeguarded the plaintiff’s interests. No error.