Tillett v. Norfolk & W.R. Co.

• Decision Date: 17 March 1896
• Citation: 24 S.E. 111,118 N.C. 1031
• Parties: TILLETT v. NORFOLK & W. R. CO. et al.
• Court: North Carolina Supreme Court

24 S.E. 111

118 N.C. 1031

TILLETT v. NORFOLK & W. R. CO. et al.

Supreme Court of North Carolina

March 17, 1896

Appeal from superior court, Person county; Starbuck, Judge.

Action by James W. Tillett against the Norfolk & Western Railroad Company and another for personal injuries. There was a judgment for plaintiff, and defendants appeal. Affirmed.

It appeared that after plaintiff boarded a passenger car attached to a freight train on defendants' road, but before he had seated himself, he was thrown down by reason of another car, which was moved for the purpose of making a coupling, having come in violent contact with the car which plaintiff had boarded. Prior to the date of plaintiff's injury, defendant the Lynchburg & Norfolk Railroad Company leased its line of railway to its codefendant, the Norfolk & Western Railroad Company, which said last-named company under the provisions of the lease, was, at the time of the injuries to plaintiff, engaged in operating said line. The action was tried before his honor, Judge Starbuck, and a jury, at the November term, 1895, of the supreme court of Person county, upon the issues directed by the supreme court in this case, as will appear from the record and the opinion of the court reported in 115 N.C. 662, 20 S.E. 480, and in 116 N.C. 937, 21 S.E. 698. After the jury was impaneled, the defendants' counsel tendered the following issues "(3) Was the plaintiff rightfully on the train of the defendant the Norfolk & Western Railroad Company? (4) Was the plaintiff injured by the negligence of the said defendant the Norfolk & Western Railroad Company? (5) Did the plaintiff, by his own negligence, contribute to his own injury? (6) If so was the plaintiff's negligence the proximate cause of the injury? (7) Was the injury complained of the cause of the plaintiff's alleged blindness and incapacity to conduct his business? (8) Was the plaintiff injured in the manner described and alleged in the complaint?" His honor refused to submit these issues, except as they are embraced in those set out in the record, and the defendants' counsel excepted to the refusal of the court to submit the issues as tendered by him. Thereupon the court, upon examination of the opinion of the supreme court in this case and the pleadings therein, submitted the following issues: "(2 1/2) Was the plaintiff rightfully on the train of the defendant the Norfolk & Western Railroad Company? (3) Was the plaintiff injured by the negligence of the Norfolk & Western Railroad Company? (4) Did the plaintiff, by his own negligence, contribute to his injury?" The defendants' counsel excepted to these issues as submitted by the court. The only exception to the evidence was taken to the refusal of the court to permit defendants to ask a witness the following question: "Was this coupling, which made the stock complained of, done in a manner which was negligent or otherwise?" At the request of plaintiff's counsel, the court gave the following instruction, which was duly excepted to by defendants: "(2) It was the duty of the railroad employés in charge of the train in question to keep it under control, so as to prevent its coming back against the passenger car with too great a violence; and if there was a failure to apply the brakes soon enough, and if, by reason of such failure to apply the brakes in time, the employés lost control of the train, and it came back against the passenger car with too great a violence, and the plaintiff was thereby injured, without any contributory negligence on his part, and while he was rightfully on the train, then you will answer the 3d issue, 'Yes."' There were a verdict and judgment for plaintiff.

What is negligence is a question of law when the facts are undisputed; but where the facts are controverted, or more than one inference can be drawn from them, it is the province of the jury to pass upon an issue involving it.

R. O. Burton, Jones & Tillett, and W. W. Kitchin, for plaintiff.

W. A. Guthrie, for defendants.

AVERY J.

There was no error in refusing to submit the issues tendered by the defendants. Those framed by the court involved the only questions left open for trial. Tillett v. Railroad Co., 115 N.C. 662, 20 S.E. 480. In the exercise of a sound discretion, the court was at liberty to allow the jury to pass upon the specific question whether the plaintiff was rightfully on the car; but the right of the plaintiff to board the car must have been proven necessarily in order to make out a prima facie case of negligence on the part of the defendants, and thus all of the controversy still left open might have been determined by means of the two issues involving the alleged negligence of the defendants and contributory negligence on the part of the plaintiff.

What is negligence is a question of law when the facts are undisputed. But where the facts are controverted, or more than one inference can be drawn from them, it is the province of the jury to pass upon an issue involving it. Deans v. Railroad Co., 107 N.C. 686, 12 S.E. 77. A mixed question is then presented, and it becomes the duty of the judge, at the request of counsel, to tell the jury how to apply the law of negligence to the various phases of the testimony, and the office of the jury to make the application of the law, as given by the court, to the facts as found by them. They determine in this way, by their responses to the issues, whether negligence or contributory negligence has been shown. When, therefore, the witness was asked to state whether a car was coupled in a negligent manner, the question was calculated to elicit an opinion upon one of the very questions which the jury were impaneled to decide; and the objection to its competency, being made in apt time, was properly sustained. Smith v. Smith, 117 N.C. 326, 23 S.E. 270; Wolf v. Arthur, 112 N.C. 691, 16 S.E. 843.

There is no merit in the exception to the refusal of the court, by means of an additional issue, to reopen the question of damages, which was finally settled and determined when this court granted a new trial, limited virtually to two issues. It is needless, therefore, to discuss the point presented by counsel on the argument.

It was not error to refuse to allow defendants to show, in diminution of damages already ascertained by a verdict, that the permanent injury to plaintiff's eyesight was due to his failure to...