Mccracken v. Smathers

CourtUnited States State Supreme Court of North Carolina
Citation119 N.C. 617,26 S.E. 157
Decision Date21 December 1896
PartiesMcCRACKEN. v. SMATHERS.

Trial—Instructions.

In an action for malpractice, where defendant set up contributory negligence as a defense, an instruction that if plaintiff was guilty of contributory negligence, which was the proximate cause of her injury, she could not recover, was erroneous, without any instruction as to what constituted contributory negligence, though no request was made therefor.

Appeal from superior court, Haywood county; Bryan, Judge.

Action by Maggie McCracken, by her next friend, J. M. McCracken, against H. A. Smathers. From the judgment, plaintiff appeals. Reversed.

Smathers & Crawford, for appellant.

Ferguson & Ferguson, for appellee.

AVERY, J. The plaintiff brought the action against the defendant, who is a dentist, for malpractice in the treatment of a tooth. The defendant set up contributory negligence as a defense. The court instructed the jury that if they should find from the evidence that the plaintiff was guilty of contributory negligence, and such negligence was the proximate cause of her injury, she could not recover. The plaintiff assigned as error that the court improperly instructed the jury upon the question of contributory negligence.

It is not the duty of the judge, of his own motion or without special request, to instruct the jury upon every possible aspect of the evidence, or as to every conceivable deduction of fact which may be drawn from it. Russell v. Railroad Co., 118 N. C. 1098, 24 S. E. 512. In response to prayers for instruction, the trial judge is required to tell the jury whether, in any given phase of contradictory evidence, or upon the deduction by them from the testimony of any inference that they may fairly draw from it, either of the parties would be culpable. But, even where such special instruction is asked and given, the trial judge must upon request properly made, and may of his own motion, lay down the rule of the prudent man as the test of culpability on the part of either party who may be charged with carelessness. Where no requests for instruction are made by counsel as to the application of the law to the testimony bearing upon an issue involving negligence or contributory negligence, it is not simply the province, but it is the duty, of the court, to give the general definition of ordinary care. The testimony as to the conduct of the plaintiff was somewhat conflicting. In applying the law, the jury should have been told, in substance, that their response to the second issue depended upon the questionwhether the plaintiff exercised ordinary care, or such care as a prudent person similarly situated would have shown in looking to her own protection; and, if the injury she sustained was due to her own want of care as the concurrent or proximate cause intervening after the negligence of the defendant, they should respond to the second issue "Yes, " otherwise "No." Pickett v. Railroad Co., 117 N. C. 616, 23 S. E. 264. To make the rule comprehensible to the jury, the converse of the last proposition might also have been submitted in the same connection. Where a trial judge undertakes to enlighten the jury upon the testimony offered to prove a defendant guilty of assault and battery, in the absence of special requests, he meets the requirements of the law, and prevents his...

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18 cases
  • Switzerland Co. v. North Carolina State Highway & Public Works Commission
    • United States
    • United States State Supreme Court of North Carolina
    • November 8, 1939
    ...could not be met by silence. Richardson v. Cotton Mills, 189 N.C. 653, 127 S.E. 834; State v. Melton, 187 N.C. 481, 122 S.E. 17; McCracken v. Smathers, supra. It was imperative that court speak, and speak directly to the issue. Such, in effect, was the holding or pronouncement in Robinson v......
  • Switzerland Co v. North Carolina State Highway & Pub. Works Comm'n, 235.
    • United States
    • United States State Supreme Court of North Carolina
    • November 8, 1939
    ...us by statute. State v. Merrick, supra. The jury is not to be permitted to wander afield or to grope in the dark. McCracken v. Smathers, 119 N.C. 617, 26 S.E. 157. Consequently, the proper exercise of the court's function of instruction is indispensable, Nichols v. Fibre Co., supra, except ......
  • Graves v. Norfolk & S. R. Co
    • United States
    • United States State Supreme Court of North Carolina
    • September 13, 1904
    ...24 S. E. 426; Ellerbee v. Railroad, 118 N. C. 1027, 24 S. E. 808; Russell v. Railroad, 118 N. C. 1112, 24 S. E. 512, or McCracken v. Smathers, 119 N. C. 617, 26 S. E. 157—which were cited by the defendant's counsel in argument, and urged upon our attention—but, on the contrary, it is sustai......
  • Gray v. Weinstein, 667.
    • United States
    • United States State Supreme Court of North Carolina
    • May 21, 1947
    ......Austin, 153 N.C. 508, 69 S.E. 500; McCracken v. Smathers, 122 N.C. 799, 29 S.E. 354; Id., 119 N.C. 617, 26 S.E. 157.        The defendant, on the other hand, without presently ......
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