Denmark v. Atl. & N. C. R. Co

• Court: North Carolina Supreme Court
• Writing for the Court: Avery
• Citation: Denmark v. Atl. & N. C. R. Co, 107 N.C. 185, 12 S.E. 54 (N.C. 1890)
• Decision Date: 27 October 1890
• Parties: Denmark. v. Atlantic & N. C. R. Co.

107 N.C. 185

12 S.E. 54

Denmark.

v.Atlantic & N. C. R. Co.

Supreme Court of North Carolina.

Oct. 27, 1890.

Trial, —Issues for Jury—Negligence.

Under Code N. C. § 395 et seq., requiring issues of fact raised by the pleadings to be submitted to the jury, it is error, in an action for personal injuries, where the principal issue raised by the pleadings is whether plaintiff's injuries were caused by defendant's negligence, to refuse to submit that issue to the jury.

Appeal from superior court, Wayne county; Whitaker, Judge.

Action for personal injuries by Kleber Denmark against the Atlantic & North Carolina Railroad Company. From a judgment for plaintiff, defendant appeals.

Aycock & Daniels, for plaintiff.

W. W. Clark, for defendant.

Avery, J. The counsel for the defendant tendered the following issues: "(1) Were the plaintiff's injuries caused by the negligent running of defendant's engine? (2) Was there contributory negligence on the part of the plaintiff? (3) What damages is the plaintiff entitled to recover?" The judge who presided declined submit those proffered, and substituted instead of them a single issue, which, with response of the jury to it, is as follows: "What damages, if any, is the plaintiff entitled to recover? Answer. $5,000." The defendantexcepted to the refusal of the court to submit those tendered, and to the substitution of the issue passed upon by the jury. When the judge who tries an action assumes the responsibility of settling the issues, he finds that this court, in construing the statute, has laid down three rules for his guidance: (1) Only issues of fact raised by the pleadings must be submitted to the jury. (2) The verdict, whether in response to one or many issues, must establish facts sufficient to enable the court to proceed to judgment. (3) Of the issues raised by the pleadings, the judge who tries the case may, in his discretion, submit one or many, provided that neither of the parties to the action is denied the opportunity to present to the jury any view of the law arising out of the evidence, through the medium of pertinent instructions, on some issue passed upon. McAdoo v. Railroad Co.. 105 N. C. 140, 11 S. E. Rep. 316; Emery v. Railroad Co., 102 N. C. 209, 9 S. E. Rep. 139; Bonds v. Smith, 106 N. C. 562, 11 S. E. Rep. 322; Boyer v. Teague, 106 N. C. 633, 11 S. E. Rep. 665. The question of the quantum of damages is an incidental one, the right to have them assessed at all depending upon the preliminary decision of the real issues of fact raised by the pleadings. Hence, in common practice, when the nisi prius judge instructs the jury how to write their responses to them, he generally directs that, if their findings upon certain preliminary issues are favorable to the defendant, it will dispense with the necessity of assessing the plaintiff's damage. But, in some other instances in common practice, the incidental nature of the question of amount of damages is, with the approval of the court below, answered, and that and the appellate tribunal subsequently pass upon the reserved issue of law whether the responses to the main issues are a sufficient predicate for a judgment for the amount so conditionally determined. This common practice is founded upon reason and authority. It is well settled that the statutes (Code, § 395 etseq.) are mandatory in the requirement that an issue or...