Rittenhouse v. Wilmington Street Ry. Co.
| Decision Date | 23 March 1897 |
| Citation | 26 S.E. 922,120 N.C. 544 |
| Parties | RITTENHOUSE v. WILMINGTON ST. RY. CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, New Hanover county; Coble, Judge.
Action by Jennie T. Rittenhouse against the Wilmington Street-Railway Company. Judgment for plaintiff. Defendant appeals. Reversed.
Where a witness on cross-examination was impeached, a statement which he had signed shortly after the transaction testified to is admissible to corroborate it.
Plaintiff alleged that her intestate, while in the employ of the defendant company, and while taking out one of its street cars over the track for the purpose of testing the car, which said intestate had just repaired, received injuries from which he died within a short while; and that the said injuries were directly caused by the negligence of the defendant company in failing to keep its track in proper repair at and near the bridge which spans the Carolina Central Railway Company's track, on Fourth street, in the city of Wilmington. The defendant denied the alleged negligence, and insisted that its track, at the point complained of, was in good repair, and that, if it was not in good repair, such want of repair was due to the negligence of the track foreman,--a fellow servant of plaintiff's intestate,--who had been specially instructed by the defendant to place the track at this point in good condition. The defendant further alleged that plaintiff's intestate contributed by his own negligence to the accident complained of. The defendant further alleged that plaintiff's intestate was well acquainted with the condition of the track of the defendant and that, if they were not in a good condition, and were dangerous, he knew it; and yet, without being ordered, or under any obligation so to do, voluntarily incurred the risk of going over said bridge, and the defendant company relied upon the plea of "volenti non fit injuria," or "assumption of the risk."
The defendant company tendered the following issues: (1) Was the injury to plaintiff's intestate due to the defective condition of defendant's tracks at the place of the accident? (2) If so, was the defective condition of the tracks due to the negligence of a fellow servant? (3) Did the negligence of plaintiff's intestate contribute to the injury? (4) Did plaintiff's intestate voluntarily attempt to cross the Carolina Central bridge, knowing the condition of track and car? (5) What damages, if any, has plaintiff sustained? Which were declined by the court, and the following issues were submitted to the jury: (1) Was the death of Thomas D. Rittenhouse, plaintiff's intestate caused by the negligence of the defendant? (2) Did the said Thomas D. Rittenhouse contribute to his death by his own negligence? (3) What damage, if any, has the plaintiff sustained? To which the jury responded "Yes" to the first, "No" to the second, and "Five thousand dollars" to the third.
The witness John Sheehan was on a car of the defendant company running immediately behind the one upon which Rittenhouse was riding, and saw the accident. Defendant put him on the stand, and he gave his account of the accident. On cross-examination, he was severely impeached. To corroborate him, defendant offered in evidence a statement, which he did not write, but which he made to the authorities of the company, and which they wrote down, read over to him, and verified and signed by him a short while after the accident occurred. Upon objection by plaintiff, this corroborative statement was excluded, and defendant excepted.
The seventh instruction asked by defendant was as follows: "(7) If the jury believe the evidence, C. H. Gilbert and Rittenhouse were fellow servants; and, if the injury to plaintiff's intestate was due to the tracks not being put and kept in good repair, then the plaintiff cannot recover, and jury must find first issue, 'No."'
George Rountree, for appellant.
Thomas W. Strange, for appellee.
We do not think it was error to refuse to submit the fourth issue tendered by the defendant. It is true that in strict parlance, and logically, there is a distinction between contributory negligence of the intestate and his voluntarily taking a risk which he knew to be dangerous. "Carelessness is not the same thing as intelligent choice," and most respectable authorities have pointed out the distinction. Bowen, L. J., in Thomas v Quartermaine, 18 Q. B. Div. 685, 697; Minor v. Railroad Co., 153 Mass. 398, 26 N.E. 994. But upon the issue of "contributory negligence" both phases of the matter, negligence and voluntary assumption of risk, could be submitted to the jury, and the charge shows that the judge did so submit this case. The defendant was not cut off from presenting any phase of its defense, and it can serve no good purpose to more minutely divide the issues. Humphrey v. Trustees, 109 N.C. 132, 13 S.E. 793; Denmark v. Railroad Co., 107 N.C. 187, 12 S.E. 54. It would rather serve to confuse the jury. The jury readily comprehend that by the issue of contributory negligence they are asked to find whether the plaintiff's fault was the proximate cause...
To continue reading
Request your trial