House v. Seaboard Air Line R. Co.

• Decision Date: 07 October 1902
• Citation: 42 S.E. 553,131 N.C. 103
• Parties: HOUSE v. SEABOARD AIR LINE R. CO.
• Court: North Carolina Supreme Court

42 S.E. 553

131 N.C. 103

HOUSE v. SEABOARD AIR LINE R. CO.

Supreme Court of North Carolina

October 7, 1902

Appeal from superior court, Franklin county; Justice, Judge.

Action by J. W. House against the Seaboard Air Line Railroad Company. Judgment of nonsuit, and plaintiff appeals. Reversed.

F. S Spruill, for appellant.

Day & Bell, for appellee.

COOK J.

Upon the conclusion of the evidence, defendant moved the judge to instruct the jury that, considering all the evidence, it would be their duty to answer the second issue, to wit "Did plaintiff by his own negligence contribute to his own injury?" "Yes." The judge thereupon intimated that he would so hold, and so instruct them plaintiff submitted to a nonsuit, and appealed.

After carefully reading the evidence of plaintiff, and that of defendant (69 pages of the printed record), we find it to be very conflicting. If the evidence of plaintiff be believed (and it must be accepted as true, and all the evidence construed in the most favorable light to him, upon a motion to nonsuit), then the jury would be warranted in finding that he was not negligent; while if that of plaintiff be not believed, and that of defendant should be believed, then the jury would be warranted in finding that he was negligent, and but for such negligence the injury would not have occurred. What is negligence, or contributory negligence, is a question of law upon a given or ascertained state of facts, to be decided by the court. But when the facts are not ascertained and are in dispute, then negligence becomes a mixed question of law and fact, and it is the duty of the judge to leave the question of fact to be found by the jury under proper instructions concerning the rule of ordinary care, and to apply the law to the facts as they may find them. Miller v. Railroad Co., 128 N.C. 26, 38 S.E. 29, and cases there cited; Moore v. Railway Co., 128 N.C. 455, 39 S.E. 57.

Here the facts were not found, and the evidence concerning them conflicting, with the burden of proving contributory negligence resting upon defendant. Acts 1887, c. 33. So his honor erred in ruling that he would direct the jury to answer the second issue, "Yes." The principle that the court cannot direct a verdict in favor of a party upon whom rests the burden of proof is now too well settled to admit of discussion. Cox v. Railroad Co., 123 N.C. 604, 31 S.E. 848, and cases there cited. Under rule 31 of the...