Penny v. Atlantic Coast Line R. Co.
| Decision Date | 26 March 1913 |
| Citation | 77 S.E. 774,161 N.C. 523 |
| Parties | PENNY v. ATLANTIC COAST LINE R. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, New Hanover County; Carter, Judge.
Action by B. F. Penny against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.
In an action against a railroad company for damages in failing to prevent plaintiff from being injured in a shooting affray between third persons, where there was evidence of negligence only on the part of one servant, the submission of the question of negligence of another servant held misleading.
These issues were submitted to the jury:
From the judgment rendered, the defendant appealed.
Geo. B. Elliot, Geo. Rountree, and Davis & Davis, all of Wilmington, for appellant.
E. K. Bryan, M. Bellamy, and A. J. Marshall, all of Wilmington, for appellee.
This case was before us at a former term (153 N.C. 298, 69 S.E. 238, 32 L. R. A. [N. S.] 1209), and the facts are fully stated in the opinion of the court. It is unnecessary to restate them. The evidence set out in the present record is substantially the same as on the former trial. His honor saw fit to submit issues different from the usual issues in personal injury cases, and different from those submitted on the former trial.
The submission of the second issue, relating to the conduct of Van Amringe, although unanswered, was calculated to mislead the jury and to draw their attention to a matter which the opinion of this court held not to bear on the liability of the defendant. In the former opinion (153 N.C. 298, 69 S.E. 238, 32 L. R. A. [N. S.] 1209), this court specifically held that there was no evidence of negligence upon the part of Van Amringe, the baggagemaster; that there is no evidence that Van Amringe knew, or had reason to believe, that La Motte borrowed the pistol for an unlawful purpose. We held that "the act of Van Amringe in lending the pistol to La Motte was not the proximate cause of the injury to plaintiff, which was caused by a stray bullet fired from Calloway's pistol." We further said: "There is in legal parlance no direct causal connection between the act of Van Amringe in loaning the pistol and the unforeseen accidental injury to plaintiff by Calloway." We held then, and we hold now, that there is some evidence of negligence offered by plaintiff upon the part of the conductor Carmon which should be submitted to the jury, and therefore the motion to nonsuit was properly denied. But there is no evidence that any other employé of defendant upon that train was guilty of negligence and could have prevented the injury to plaintiff and failed to do it. The case is properly made to turn on the conduct of Carmon.
Nevertheless, and notwithstanding our former opinion, his honor saw fit to charge the jury as follows: "If the jury find from the evidence, by its greater weight, that the employés of the defendant, or either of them, could by the exercise of the highest degree of practical care and human foresight, after they discovered a shooting was about to take place at its station, have prevented the plaintiff from being injured, even though the defendant's employés did not bring on the difficulty, and the jury shall further find that the failure to exercise such care and foresight was the proximate cause of the plaintiff's injury, then the jury should answer the first issue 'Yes."'
The first issue properly confines the negligence, upon which plaintiff's cause of action depends, to the conduct of Carmon; yet his honor, by inserting in his charge the words "or either of them," plainly permitted the jury to consider and pass on the conduct of Van Amringe and every other employé on the train under that issue. This was in contradiction, not only of the former opinion of this court, but at variance with the issue as submitted and formulated by the judge. This was error.
His honor further charged that: "The plaintiff further contends that La Motte was in the wrong; and the plaintiff contends that Van Amringe had no reasonable ground to believe that La Motte was in the right; and the plaintiff contends that Van Amringe did not act with reasonable prudence in handing the pistol to an enraged man without knowing whether there was any occasion for him to have the pistol." A considerable portion of his honor's elaborate remarks to the jury relates to the alleged negligence of Van Amringe, and thus he injected into the case an element of negligence which we had held was foreign to it. This was highly injurious to defendant, and was calculated to mislead the jury. It is the duty of a trial judge to follow the decisions of the appellate court, especially when made in the cause he is trying, whether he approves them or not.
His honor instructed the jury that they could, if they saw fit, allow interest on the damages from the date of the accident, which occurred on September 18, 1898. We are unable to find any authority in text-books or decided cases sustaining such ruling.
In reference to damages for personal injuries, it has been uniformly and repeatedly held that the jury may not allow interest. It is different in respect to torts committed in the destruction of property, and for very good reasons. Harper v. Railroad, 77 S.E. 415, and cases cited, at present term. Am. & Eng. Enc. states the rule to be that interest is not recoverable on the damages awarded in actions for torts to the person, because the damages in such cases are in large measure discretionary with the jury, and are not ascertainable with reference to a pecuniary standard. Volume 16, p. 1032, citing many cases from Maine, New York, Pennsylvania, Tennessee, Texas, Utah, Georgia, and other appellate courts. Washington R. R. Co. v. Harmon, 147 U.S. 571, 13 S.Ct. 557, 37 L.Ed. 284; McMurtry v. Railroad, 84 Ky. 462, 1 S.W. 815; Louisville, etc., R. R. v. Sharp, 91 Ky. 411, 16 S.W. 86. To the same effect is 22 Cyc. p. 1500.
The universal principle deduced from all the precedents is that a personal injury does not create a debt, and does not become one until it is judicially ascertained, and that it is error for the court to tell the jury that they may allow interest on the damages awarded. We do not find a single dissenting case to that proposition. The following additional cases fully sustain it: Sargent v. Hampden, 38 Me. 581; Ratteree v. Chapman, 79 Ga. 574, 4 S.E. 684; Railroad v. Young, 81 Ga. 397, 7 S.E. 912, 12 Am. St. Rep. 320; Railroad v. Wallace, 91 Tenn. 35, 17 S.W. 882, 14 L. R. A. 548; Texas, etc., R. Co. v. Carr, 91 Tex. 332, 43 S.W. 18; Costello v. D. C., 21 D. C. (10 Mackey) 508; E. T. & H. K. Ide v. Boston & Maine R. R., 83 Vt. 66, 74 A. 401 (1909); Jacobson v. Gypsum Co., 150 Iowa, 330, 130 N.W. 122 (1911); Cochran v. Boston, 211 Mass. 171, 97 N.E. 1100, 39 L. R. A. (N. S.) 120; Ill. Cent. R. R. v. Read, 37 Ill. 484, 87 Am. Dec. 260.
In the case of Cochran v. City of Boston, supra, the latest case on the subject, it is said that interest may not be considered in determining the amount of damages for personal injury, and the reason for the rule is clearly and forcibly stated as follows: ...
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