Cullifer v. Atl. Coast Line R. Co

• Decision Date: 03 March 1915
• Docket Number: (No. 72.)
• Citation: 84 S.E. 400,168 N.C. 309
• Court: North Carolina Supreme Court
• Parties: CULLIFER. v. ATLANTIC COAST LINE R. CO.

84 S.E. 400

168 N.C. 309

CULLIFER.

v.ATLANTIC COAST LINE R. CO.

(No. 72.)

Supreme Court of North Carolina.

March 3, 1915.

Appeal from Superior Court, Edgecombe County; Ferguson, Judge.

Action by Lillie Cullifer against the Atlantic Coast Line Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed, and new trial granted.

This is a civil action, tried upon these issues:

(1) Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: No.

(2) Was the plaintiff guilty of contributory negligence, which brought about her own injury? Answer.

(3) Notwithstanding any negligence on the part of said plaintiff, could the defendant, by the exercise of due care and prudence, have prevented the injury after the perilous condition of the plaintiff was discovered? Answer: No.

(4) What damages, if any, is plaintiff entitled to recover? Answer.

From the judgment rendered, the plaintiff appealed.

Fountain & Fountain, of Tarboro, Claude Kitchin, of Scotland Neck, and G. M. T. Fountain & Son, of Tarboro, for appellant.

F. S. Spruill, of Rocky Mount, for appellee.

BROWN, J. [1] Exception No. 3 of the plaintiff is based upon the following facts: After the case was given to the jury by the judge, it was agreed by counsel, with the approval of the court, that the clerk should take the verdict. The clerk went to the courtroom to receive the verdict, and, without asking them whether or not they had agreed upon their verdict, he asked them to hand him the issues, and the issues were handed to him, answered as follows by the jury: The first issue, "Yes;" the second issue, "Yes;" the third issue, "No;" the fourth issue, "Twenty-five hundred dollars." That the clerk thereupon handed the issues back to said jury and said to them that they had better retire to their rooms and reconsider the issues and see if answers were not in conflict with the judge's charge. That one of the jurors asked, "In what respect?" The clerk said to him that he could not instruct him as to that. That they could retire and see for themselves, and the jury immediately retired to their room. The next morning, which was Sunday, about 20 minutes after 10 o'clock, the jury returned the verdict of record. To this the plaintiff excepted for that the verdict of record is not the proper verdict, and before judgment moved for a new trial, and that both verdicts be set aside. The court, being of opinion that the defendant was entitled to judgment on the verdict as returned to the clerk, overruled the plaintiff's motion, and the plaintiff excepted.

It was error upon the part of the clerk to have given any instructions whatever to the jury. It was not for him to say whether they had followed the charge of the court or not. When the jurors tendered to him the issues, on Saturday night, it was his duty to have accepted them under the instructions of the court and the agreement of counsel, and not have undertaken to advise the jury as to their attitude. In so doing, he overstepped his authority.

The plaintiff...