Alexander v. Richmond & D.R. Co.
| Decision Date | 09 February 1893 |
| Citation | 16 S.E. 896,112 N.C. 720 |
| Parties | ALEXANDER v. RICHMOND & D. R. CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Mecklenburg county; J. F. GRAVES, Judge.
Action by Annie L. Alexander against the Richmond & Danville Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.
In an action against a railroad company for injuries from a collision at a city street crossing, defendant asked that the jury be charged that "if plaintiff, by the exercise of her senses, could have heard the approaching engine, and failed to do so, and her injury was caused thereby, it was negligence on her part, and the answer to the second prayer [evidently meaning issue, which was plaintiff's contributory negligence] should be, 'Yes.' " Held, that it was not necessary to give the conclusion that the answer should be "Yes," though it was proper since the failure to give it could not mislead the jury, or prejudice defendant.
Plaintiff alleged that in attempting to cross defendant's railroad at the crossing at Fifth street, in Charlotte, with her horse and buggy, she was carelessly and negligently run into by defendant's shifting engine, her buggy broken, and her horse frightened, and thereby rendered less easily manageable, and her shoulder bruised, causing a permanent injury to her right arm. Plaintiff, in her own behalf testified that she was a regularly licensed physician engaged in the practice of her profession; that, before crossing the track, she "held up very slow," to hear if there was an approaching train; that she heard no bell, and did not see the approaching engine until it was a few feet away; that there were box cars standing on one of the tracks, on both sides of the street; that a factory was on one side of Fifth street at this crossing, and a foundry and machine shop on the other; that both were making a noise like the running of a train, but that she heard the bell at the same place the evening before, above this noise. She also testified that she had not been confined to the house by reason of the accident, and had not carried her arm in a sling, but had continued to practice her profession, and drove with her injured hand.
Defendant asked special instructions. The sixth instruction asked for was: "If the cars on the track cut off the plaintiff's vision, and the noise of the factory and machine shop drowned other noises, it was the duty of the plaintiff to use her sense of hearing all the more cautiously, and, if she failed to use greater than ordinary caution, the answer to the second issue should be 'Yes."' The court gave the instruction down to and including the word "caution," and added, "it would be negligence." The third instruction asked for was: "The defendant had a right to leave its cars on its side track, and, if this was the cause of the injury, the answer to the first issue should be 'No."' The court refused to give the instruction, and said defendant had the right to use its track across the public highway, and to leave its cars standing on the track, provided it kept open a sufficient passway. The tenth and twelfth instructions asked which were refused, were as follows: "The evidence shows that plaintiff's injury was caused by her own negligence, and the answer to the second issue should be 'Yes."' "If the jury believe the evidence of the plaintiff herself, she did not use reasonable care in crossing the railroad, and thereby contributed by her own negligence to her injury, and the answer to the second issue should be 'Yes."' The instruction 10a asked for was: "It was the duty of the plaintiff to use the proper means for her recovery from any injury she sustained by the accident, and, if she failed to do so, she can only recover for such injury, loss of time, and medical bills as would reasonably flow from the injury with proper treatment." The thirteenth instruction asked for was refused, and was as follows: "If the jury believe the evidence, plaintiff did not use the proper means for restoring herself to health, and she can therefore recover nothing for any injury caused by her own neglect."
G. F. Bason and D. Schenck, for appellant.
Jones & Tillett, for appellee.
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 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...
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