Clark v. Wright

• Decision Date: 16 December 1914
• Docket Number: 490.
• Parties: CLARK v. WRIGHT ET AL.
• Court: North Carolina Supreme Court

83 S.E. 775

167 N.C. 646

CLARK v. WRIGHT ET AL.

No. 490.

Supreme Court of North Carolina

December 16, 1914

Appeal from Superior Court, Lincoln County; Harding, Judge.

Action by Andie E. Clark, by his next friend, W. E. Clark, against R. H. Wright and another. From a judgment for plaintiff defendants appeal. Reversed and remanded.

Clark C.J., dissenting.

The driver of an automobile on a public highway is not liable for injuries resulting from a collision, unless his negligence caused the accident complained of.

This is a civil action, tried upon these issues:

First. Was the plaintiff, Andie Clark, injured by the negligence of the defendants, as alleged in the complaint? Answer: Yes.

Second. Did the plaintiff, by his own negligence, contribute to his own injury? Answer: No.

Third. What damage, if any, is the plaintiff entitled to recover? Answer: $2,500. Twenty-five hundred dollars.

From the judgment rendered, the defendants appealed.

C. E Childs, of Lincolnton, and Cansler & Cansler, of Charlotte for appellants.

L. B. Wetmore, of Lincolnton, and E. R. Preston and Duckworth & Smith, all of Charlotte, for appellee.

BROWN, J.

This action is brought to recover damages for injuries alleged to have been sustained by the negligence of the defendants in so running their automobile as to cause the same to run over and injure the plaintiff.

His honor charged the jury:

"Now, defendant contends he has shown you that by the evidence, which he contends ought to satisfy you. The burden is not on the defendant to satisfy you of that contention by the greater weight; the burden is upon the plaintiff to satisfy you of his contentions as to the first issue by the greater weight of the evidence. If the plaintiff fails to satisfy you by the greater weight of the evidence, that is, when you have heard all the evidence and the law and circumstances, and you go to deliberate upon the testimony, the circumstances under which the injury took place (a) if the weight of the evidence satisfies you, by its greater weight, that the defendant was driving its machine in a negligent manner, then the issue would be answered 'Yes' (b) but it must, by the greater weight, satisfy you of that."

The defendants except to that portion of the charge embraced between the letters (a) and (b). Negligence becomes actionable only when it results in injury and is the proximate cause thereof. The charge was therefore erroneous in that it entirely left out of view the question of proximity of cause, and permitted the jury to convict the defendant of negligence merely by proof of the single and sole fact that the car was being driven in a negligent manner. Brewster v. Elizabeth City, 137 N.C. 392, 49 S.E. 885; Edwards v. Railroad, 129 N.C. 78, 39 S.E. 730. An examination of the charge as a whole fails to disclose that the error was cured.

New trial.

CLARK C.J. (dissenting).

There was evidence that while the plaintiff, a boy of nine years of age, with his little sister, was diagonally crossing Main street in Lincolnton at a point about 50 yards east of Childs' corner, he was run over and injured by the defendant's automobile, which was being driven by a colored chauffeur at a speed of from 10 to 12 miles an hour, and without giving any warning or signal of the approach of said car before running over and striking the plaintiff. The defendant offered evidence that the car was being driven carefully down the street at a speed of six to eight miles per hour, with the usual signals, when the plaintiff suddenly darted out from behind a vehicle standing immediately in front of the moving car, and so close thereto as to make it impossible for the driver of the car to stop the same before striking the plaintiff, though he used the emergency brake and other appliances at his command. If the plaintiff's evidence was taken by the jury as true, he was injured by the negligence of the defendant, as alleged in the complaint. If the defendant's testimony was taken as true, the plaintiff contributed to his own injury. There being evidence that the defendant was driving at a speed exceeding 10 miles an hour, this was contrary to law, and the plaintiff, irrespective of other conduct of the defendant, was stricken by his negligence, and the court told the jury that if "the testimony satisfied them by its greater weight that the defendant was driving his machine in a negligent manner and struck the plaintiff, then the first issue would be answered, 'Yes.' " This was in accordance with the long-settled rulings of this court. If, however, the defendant's testimony was also true that, notwithstanding his own negligence, either in the speed of the car or otherwise, the plaintiff, by darting suddenly out in front of the machine, was run over by the defendant's car because he was unable to stop it, then the second issue as to the contributory negligence of the plaintiff should have been answered, "Yes." In the absence of contributory negligence by the plaintiff, the injury was necessarily caused by the proximate negligence of the defendant, if the jury found that the defendant was negligent, for there is no controversy that the child was run over and injured by the defendant's machine. There being no controversy as to the fact that the plaintiff was struck and injured by the car of the defendant, it was for the jury, by the greater weight of the evidence, to say, as the judge told them, whether at the time of the injury the defendant was guilty of negligence. If so, it was the proximate cause, unless the jury should find that the plaintiff's negligence contributed to the injury. It is the second issue, and not the first, which always determines the question of proximate cause. The first issue merely finds whether the injury was caused by the defendant's agency while he was negligent. The second issue determines whether the plaintiff's own negligence contributed, and if it did not, then the defendant's negligence is necessarily the proximate negligence, because it was the only cause. These have been the well-settled principles governing these cases. Out of abundant caution, formerly there was a third issue, often submitted in favor of the plaintiff, i. e.:

"Notwithstanding the plaintiff's contributory negligence, could the defendant have avoided injuring the plaintiff by the exercise of proper care?"

But the law...