Kimbrough v. Hines

"WalkeR, J., after stating the essential facts of the case: The defendants contend that the instruction covered by their exception No. 28, which was taken to the instruction of the court to the jury, was erroneous, and agreed that it is especially objectionable because by it the jury were told that if the plaintiff looked and listened, and did no more, before entering upon the crossing and the track, they should answer the issue as to contributory negligence “No.” ¥e will not discuss the question whether other instructions on this phase of the case were given which were, in themselves, correct, because, even if they were, the other one was erroneous, and in conflict with them. The rule of this Court upon such a question is thoroughly well settled by our decisions. Where such a conflict occurs, a new trial is granted, because the jury are not competent, as we have often said, to decide which instruction is correct, or which is incorrect. We find this rule thus stated in Edwards v. R. R.. [279] 132 N. C., 99, where the leading authorities are cited: “The fact that the court, in one part of the charge, told the jury that it is the duty of an engineer, when approaching a crossing, to ring the bell or blow the whistle, did not cure the error he committed in the respect already indicated, that he must ring the bell and sound the whistle. It is well settled that when there are conflicting instructions upon a material point a new trial must be granted, as the jury are not supposed to be able to determine when the judge states the law correctly and when incorrectly. We must assume, in passing upon the motion for a new trial, that the jury were influenced in coming to a verdict by that portion of the charge which was erroneous.” Other cases are S. v. Barrett, 132 N. C., 1010; Tillett v. R. R., 115 N. C., 662, and Williams v. Haid, 118 N. C., 481. The court charged the jury that it was sufficient in law if the plaintiff • “looked and listened,” without doing anything more, and if the jury found that he did, they should answer the second issue, as to contributory negligence, in the negative. This instruction was erroneous, because that it is not all that 'is required of the plaintiff, but in addition thereto he must further do what a man of ordinary prudence would have done, as, for instance, stopped his car (if the jury would have found that a man of ordinary prudence would have done so), under the same or substantially similar circumstances, to save himself from injury. So that the instruction fell short of the full measure of plaintiff’s duty under circumstances which the jury could have found to exist, and this is true, although the jury should find that one of the defendant’s engineers, who was at the time in control of the engine, had failed to give the proper signal. The rule thus stated was the one adopted in Cooper v. R. R., 140 N. C., 209. Even though 'the plaintiff looked and listened, the jury may have found that the situation was such as to require him to do more, even to stopping his car, as a man of ordinary prudence would have done in like circumstances, or they may have found, by using their common sense and observation, that, notwithstanding what the plaintiff says as to the noise of his car, his ability to hear was so diminished by the noise of the same as to make it imperative that he should stop it, so that he might hear either the noise of the train as it approached nearer and nearer, or the sound of its signal. The jury could have arrived at this conclusion if they accepted the defendant’s evidence as true, that the proper signals were given, and there was no reason why the plaintiff should not have heard them and prevented injury to himself, unless his hearing was deadened by his own fault in not stopping his car. And they could also have found that no man of ordinary prudence would venture on the track under the circumstances without assuring himself of the fact that the train, then expected and behind its schedule time, [280] was not actually coming at that time and near tbe crossing, or that some shifting engine was about to pass over tbe crossing, as be testified: “I thought there might be a shifting engine about to pass.” Again he stated, “I just slowed up, and when I did not hear anything I just pulled through; when I decided to pull through I speeded up; I did not stop to look around the edge to see if anything was coming. I did not stop anywhere after I came by the Union Fertilizer Company.”. The jury may have found from this testimony, taken with some other facts, that a man of ordinary prudence would have looked around the edge of the box cars, which were five feet from the track, to see if a switching engine or train was coming, and that it was negligence, tested by the rule of the prudent man, not only not to do this, but to “speed up” when he decided to “pull through.” There are, perhaps, other combinations of facts which the jury may have found to exist, and from which the jury, by applying the rule just mentioned, may have inferred that plaintiff’s conduct was imprudent, if not very risky, and was not that of the ideally discreet and careful man. The instruction was wrong in itself, inherently so, and if there was a correct one, it was in conflict with it, and left the jury in ignorance of the true principle of law which should govern them in finding a verdict, or, at least, in a state of utter confusion as to what principle applied to facts as they found them to be. If the instructions were not in conflict, but in perfect harmony, as the last one was erroneous, both were wrong, which required the case to be referred to another jury. In Shepard v. R. R., 166 N. C., 539, it was said by Justice Hoke, citing many cases, and among them Cooper's case, supra: .“It is also established by the weight of authority that it is not always imperative on a traveler to come to a complete stop before entering on a railroad crossing; but ‘whether he must stop, in addition to looking and listening, depends upon the facts and circumstances of each particular case, and so is usually a question for the jury,’ ” citing Judson v. R. R., 158 N. Y., 597; Malott’s case, 159 Ind., 127-134; 3 Elliott on Railroads (2 ed.), sec. 1095, note 147; 33 Cyc., pp. 1010, 1020. In Judson’s case, supra, the rule is stated as follows: “A person approaching a railroad crossing is not required, as a matter of law, to stop before attempting- to cross, but his omission to do so is a fact for the consideration of the jury,” And in Malott’s case, supra: “Exceptional circumstances may also require him to stop, although this proposition generally presents itself as a mixed question of law and fact.” And Justice Iloke thus concluded, in Shepard’s case: “On a careful perusal of the record we are of opinion that the issue of contributory negligence must be referred to the decision of another jury, when the question whether, on the entire facts and circumstances, as the jury may find them to be, the plaintiff was in [281] tbe exercise of reasonable care at tbe time in entering on tbe crossing without having come to a full stop.” (Italics ours.) And yet tbe court ignored those principles, and omitted important and essential matter from bis instruction on tbe second issue, and .confined plaintiff’s contributory negligence to tbe single fact, wbetber be ‘looked and listened,” witb tbe instruction that if be did to answer tbe issue “No.” When tbe court undertakes to define wbat is negligence, it must do so fully, and not leave out any essential element of it, S. v. Phifer, 90 N. C., 721, or to state it differently. When tbe court attempts to charge tbe law, it must be done correctly. S. v. Merrick, 171 N. C., 788, and cases cited, especially Carleton’s case, 43 Neb., 373, and Simmons v. Davenport, 140 N. C., 407. As to tbe motion for a. nonsuit we will reserve our opinion, as the facts may more fully and definitely appear on tbe next trial. Defendants may renew their motion at that time without prejudice. We are, therefore, of tbe opinion, and so bold, that there was substantial error as pointed out by us, and a new trial is ordered. New trial.