Nathan v. Charlotte St. Ry. Co

• Decision Date: 21 April 1896
• Citation: Nathan v. Charlotte St. Ry. Co, 24 S.E. 511, 118 N.C. 1066 (N.C. 1896)
• Parties: NATHAN. v. CHARLOTTE ST. RY. CO.
• Court: North Carolina Supreme Court

24 S.E. 511

118 N.C. 1066

NATHAN.

v.CHARLOTTE ST. RY. CO.

Supreme Court of North Carolina.

April 21, 1896.

Street Railroads—-Injury to Passenger—Contributory Negligence—New Trial on Special Issues—Discretion of Court.

1.In an action against a street-railway company for personal injuries, where there was evidence that the plaintiff had been guilty of some degree of negligence, it was not error to submit to the jury the issue whether, in view of such negligence, the defendant could, by the exercise of ordinary care, have avoided the injury.

2.On motion for new trialthe party moving cannot restrict his motion to special issues, it being wholly within the discretion of the court on granting new trial to determine whether it shall be on one or more or all of the issues passed upon by the jury.

Appeal from superior court, Mecklenburg county; Timberlake, Judge.

Action by Henry M. Nathan against the Charlotte Street-Railway Company to recover damages for personal injuries.There was judgment for plaintiff, and defendant appeals.Affirmed.

Burwell, Walker & Cansler, for appellant.

Jones & Tillett, for appellee.

AVERY, J.Where the testimony raises the question whether there was any negligence on the part of the defendant intervening after the alleged contributory negligence of the plaintiff, it is better to leave out of the first and incorporate only in the third issue (as they are usually drawn), the inquiry whether the plaintiff's negligence was the proximate cause of the injury.This would make the ordinary form of the three issues in such cases as follows: (1) Was the defendant negligent?(2) Did the negligence of the plaintiff contribute to cause the injury?(3) Notwithstanding the negligence of the plaintiff, could the defendant by the exercise of reasonable care have avoided the injury?

Where the testimony raises the question whether a culpable act of the defendant intervening after the act constituting the alleged contributory negligence was the proximate cause of the injury, in the sense that it was an omission to discharge a legal duty, the performance of which would have averted it, it would be manifest, if the point had never been passed upon before, that an issue involving that specific inquiry would be the one raised by the general allegation that the injury was caused by the defendant's want of reasonable care, and the defendant's denial thereof; in contemplation of law, the injury is not attributed to the wrongful act unless it is shown to be the immediate and proximate cause.So that the allegation by the plaintiff that the injury was due to the defendant's carelessness, and the denial of that, coupled with the averment by defendant that the contributory negligence of the plaintiff was the cause, necessarily involves the question whether the defendant negligently omitted to avail itself of the last clear chance to avoid the accident by the performance of a legal duty.But in Baker v. Railroad Co.(decided at this term)24 S. E. 415, it was held, not only that the court might submit such an issue under pleadings like those in the case at bar, but that, if the plaintiff could show that by the refusal of the court to submit it the court deprived him of the opportunity to present some view of the law arising out of the evidence to the jury, then it would be no longer discretionary with the judge whether he would permit it to be passed upon, but would become the right of the plaintiff to demand that he should be accorded such opportunity.In Tillett v. Railroad Co.(decided at this term)24 S. E. 111, it was held to be within the sound discretion of the court to submit or refuse a specific issue involving the question whether the plaintiff was a passenger, because "the plaintiff's right to board the train must be necessarily shown in order to make out a prima facie case of negligence."Prior to that time the power of the court, as a general rule, to determine whether one, two, or three issues should be submitted, in cases like that before us, had been repeatedly recognized in a long line of cases.Pickett v. Railroad Co., 117 N. C. 638, 23 S. E. 264;McAdoo v. Railroad Co., 105 N. C. 140, 11 S. E. 316;Lay v. Railroad Co., 106 N. C. 410, 11 S. E. 412;Denmark v. Railroad Co., ...