DOUGLAS
J.
This is
an action to recover damages for injuries received by the
plaintiff through the negligence of the defendant's
lessee, the Southern Railway Company. The plaintiff alleged
that through such negligence he was injured in attempting to
cross the track of the defendant on Dillard street, in the
town of Durham, on the 2d day of May, 1896. The defendant
answering, denied any negligence of itself or its lessee, and
alleged that the plaintiff was injured by his own negligence
and that, if there was any negligence on the part of its
lessee, the plaintiff contributed to his injury by his own
negligence, and, further, that it was not responsible, in any
event, for the negligence of such lessee.
The
following issues were submitted on motion of the defendant:
(1) "Was the plaintiff injured by the negligence of the
lessee of defendant, as alleged in the complaint?"
Answered, "Yes." (2) "Did the plaintiff, by
his own negligence, contribute to the injury complained
of?" Answered, "No." (3) "What damage did
plaintiff sustain?" Answered, "$20,000."
All the
issues having been found in favor of the plaintiff, judgment
was rendered accordingly. The defendant appealed to this
court, assigning as error: "(1) The failure of the court
to give the instructions prayed for by the defendant as set
out in the 'case' on appeal, exceptions 1 to 8,
inclusive; (2) the charge of the court as set out in
exceptions 9 to 13, inclusive; (3) the refusal of the court
to grant a new trial, as set forth in exception 14; (4) the
refusal of the court to set aside the verdict because it was
excessive, as set out in exception 15; (5) the refusal of the
court to arrest the judgment because it was not responsive to
the issues, as set out in exception 15."
The
defendant offered no evidence and objected to none of the
plaintiff's evidence. The only exceptions are to the
charge of the court and the refusal to give certain of the
defendant's prayers for instructions.
At the
close of the evidence the defendant asked for the following
instructions to the jury:
"(1)
If the jury believe the evidence, plaintiff's injury
was not caused by the negligence of the defendant, and the
answer to the first issue should be, 'No.' (This
instruction was refused, and the defendant excepted. First
exception.)
"(2)
Defendant had a right to leave its cars on its side track
in the position described by the witnesses, and, if the
plaintiff's injury was due to the fact that the cars
were standing on the side track, as described, the answer
to the first issue should be, 'No.' (This
instruction was refused, except as given in the charge, and
defendant excepted. Second exception.)
"(3)
The rate of speed at which the train was run has nothing to
do with this case, unless the jury believe that if the
train had been running within the limit prescribed by the
town ordinance, to wit, not more than eight miles an hour,
it could have been stopped after plaintiff's danger
might, by reasonable care, have been discovered by the
engineer in time to have avoided the accident. (This
instruction was refused, except as given in the charge, and
defendant excepted. Third exception.)"
The
court also gave the following instructions, Nos. 4, 5, 6, 7:
"(4)
If the jury believe that the defendant was ringing its bell
as it approached the crossing, and continued to ring it up
to the crossing, or to a point where it would have given
the plaintiff warning of the approach of the train, if he
had been exercising proper care, the answer to the first
issue should be, 'No.'
"(5)
It was the duty of the plaintiff to look and listen
carefully for trains, as he approached the crossing; and if
he failed to do
either, and this was the proximate cause of his injury, the
answer to the second issue should be, 'Yes.'
"(6)
When the plaintiff saw the cars on the side track obscuring
his view of the main line of the defendant's road, it
was his duty to use his sense of hearing all the more
diligently; and, if he could have heard the approaching
train by listening carefully in time to avoid the accident,
the answer to the second issue should be, 'Yes.'
"(7)
If the jury believe the train was running beyond the rate
of eight miles an hour, that no bell was ringing or other
signal given of the approach of the train to the crossing,
still this or any other negligence of the defendant did not
excuse the plaintiff from his use of the proper care for
his own safety; he should have looked and listened all the
time, until he reached the crossing, and, if his failure to
do either was the cause of his injury, the answer to the
second issue should be, 'Yes.'
"(8)
If the jury believe that the plaintiff stopped to listen at
the first track of the D. & N., and then proceeded to
cross, without further stopping to listen, the answer to
the second issue should be, 'Yes.' (This
instruction, in this language, and except as given in
charge, was refused, and defendant excepted. Fourth
exception.)
"(9)
If the jury believe that the plaintiff, after leaving the
point where he first stopped, to wit, at the first track of
the D. & N., then proceeded on his way, and attempted to
cross without further listening, the answer to the second
issue should be, 'Yes.' (This instruction was
refused, except as modified and given in the charge, and
defendant excepted. Fifth exception.)"
"(11)
If the plaintiff could have heard the approaching train, by
stopping and listening carefully, immediately before
entering upon the crossing, and failed to so stop and
listen, the answer to the second issue should be,
'Yes.' (Given by court.)"
The
court gave the following instructions:
"(11a)
The burden is upon the plaintiff to show that his injury was
caused by the negligence of the defendant, and, if he has
failed to do this by a preponderance of the proof, the answer
to the first issue should be, 'No.' (This instruction
was given by the court.)
"(12)
If the jury believe the evidence, the plaintiff contributed,
by his own negligence, to his injury, and the answer to the
second issue should be, 'Yes.' (This instruction was
refused, except as given in the charge, and defendant
excepted. Sixth exception.)
"(13)
If the jury believe the evidence, other persons less
favorably situated than the plaintiff heard the approach of
the train, and these persons were put on the witness stand,
and their credibility vouched for by the plaintiff, there is
no evidence that plaintiff's hearing is defective, he
himself testifies that his hearing was good, and what his
witness could hear, he ought, in the exercise of the care
required of him under the circumstances of this case, to have
heard, and the answer to the second issue should be,
'Yes.' (This instruction was refused, except as given
in the charge, and the defendant excepts. Exception 7.)
"(14)
The plaintiff swears that he has been a resident of Durham
for ten years or over prior to the accident; that he had
frequently crossed the railroad at this point before; that he
knew the trains, both passenger and freight, were frequently
passing on this and other parallel roads, and that cars were
frequently being shifted up and down on both roads at this
point, and that the train which struck him was due to pass at
about the time that he attempted to cross. It was therefore
his duty to be extremely cautious in attempting to cross the
track at this point, and to exercise his sense of sight and
hearing all the time and all the way in crossing; and, when
he saw his view of the main line obstructed by the cars on
the side track, he should have been the more vigilant in the
exercise of his sense of hearing; and if at the time he was
crossing he was engaged in conversation with his companion,
and on that account was not so attentive to his surroundings,
and this lack of attention caused his injury, the answer to
the second issue should be, 'Yes.' (This instruction
was refused, except as given in the charge, and defendant
excepted. Eighth exception.)
"(15)
If the plaintiff did not know that the moving train was
approaching the crossing, but by the exercise of ordinary
care, under the circumstances, he could have done so, and
thereby avoided the injury, then he took the risk of an
accident upon himself, and the jury should answer to the
second issue, 'Yes.' (This instruction was given.)
"(16)
The court also charged the jury that, if they should answer
the first issue, 'No,' they need not consider the
other issues at all; or, if the jury should answer the first
issue,'Yes' and the second issue, 'Yes,' they
need not consider the third issue at all."
Judge's
charge:
"This
is an action brought by the plaintiff, C. H. Norton, against
the North Carolina Railroad Company, for alleged damages by
reason of injuries received on the 2d day of May, 1896, upon
the complaint that the said injuries were due to the
negligence of the defendant's lessee, the Southern
Railroad Company. The defendant denies that it was negligent
and says, further, that if it was so, that the plaintiff
contributed to his injuries by his own negligence; and if
not, its lessee would be liable for damages.
"Upon
the pleadings and evidence the court submits the following
issues to the jury: (...
