West Const. Co. v. Atlantic Coast Line R. Co.

• Decision Date: 11 October 1922
• Docket Number: 221.
• Citation: West Const. Co. v. Atlantic Coast Line R. Co., 184 N.C. 179, 113 S.E. 672 (N.C. 1922)
• Parties: WEST CONST. CO. v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

113 S.E. 672

184 N.C. 179

WEST CONST. CO. v. ATLANTIC COAST LINE R. CO.

No. 221.

Supreme Court of North Carolina

October 11, 1922

Appeal from Superior Court, Lenoir County; Ferguson, Judge.

Action by the West Construction Company against the Atlantic Coast Line Railroad Company.Judgment for defendant, and plaintiff appeals.New trial awarded.

Civil action to recover damages for an alleged negligent injury to plaintiff's truck caused by collision with defendant's train.From a verdict and judgment in favor of defendant, the plaintiff appealed.

In an action by truck owner for damages to his truck resulting from a collision with a train, it is sufficient to bar recovery if truck owner's negligence is one of the causes without which the injury would not have occurred.

Cowper Whitaker & Allen, of Kinston, for appellant.

Rouse & Rouse, of Kinston, for appellee.

STACY J.

The sole question presented on this appeal is the correctness of the court's charge on the issue of contributory negligence.The jury answered the issue of negligence in favor of the plaintiff, and the issue of contributory negligence in favor of the defendant.It is agreed that the evidence of the plaintiff and that of the defendant was sufficient to warrant the jury in answering both issues as they did.

That portion of the charge, which forms the basis of plaintiff's exceptions, is as follows: "If you answer the first issue Yes, you will then consider the second issue; the burden is on the defendant, in that issue, to prove, by the greater weight of the evidence, that the plaintiff's servant, driving the truck, was negligent and that his negligence contributed to the injury."

After the jury had considered the case for some time they returned to ask for further instructions in regard to the issue of contributory negligence.His honor directed their attention to what he had previously said on the subject, and stated that such was the correct rule, repeating it.Whereupon counsel for plaintiff requested the court to add to his charge the further instruction that, unless such negligence on the part of plaintiff's driver was the proximate cause of the injury, they would answer the second issue No.This was declined; his honor stating that he would permit the charge to remain just as he had given it.It would seem that the plaintiff was entitled to this additional instruction from what was said in Moore v. Iron Works,183 N.C 438, 111 S.E. 776;Johnson v. Railroad,163 N.C. 443, 79 S.E. 690, Ann. Cas. 1915B, 598; and Smith v. Railroad,145 N.C. 98, 58 S.E. 799, 122 Am. St. Rep. 423.

Contributory negligence, as understood and used in legal parlance, is such an act or omission on the part of a plaintiff, amounting to a want of...