Wood v. Bartholamew

• Decision Date: 12 April 1898
• Citation: 29 S.E. 959,122 N.C. 177
• Parties: WOOD. v. BARTHOLAMEW et al.
• Court: North Carolina Supreme Court

29 S.E. 959

122 N.C. 177

WOOD.

v.BARTHOLAMEW et al.

Supreme Court of North Carolina.

April 12, 1898.

Dismissal and Nonsuit — Contributory Negligence—Burden op Proof—Province of Court.

1. Laws 1897, c. 109, p. 155, § 1, providing that on trial of an issue of fact in a civil action, where plaintiff shall have produced his evidence and rested, defendant may move to dismiss the action as in case of nonsuit, applies only where It is alleged by defendant that plaintiff's evidence fails to make a case against defendant.

2. The burden of the issue of contributory negligence is on defendant.

a. The question of contributory negligence is one for the jury, unless there is no evidence to support that issue, in which case the court may find that there is no contributory negligence.

Appeal from superior court, Franklin county; Timberlake, Judge.

Action by J. H. Wood, administrator, against S. J. Bartholamew and others. Judgment for plaintiff. Defendants appeal. Affirmed.

F. S. Sprulll, W. H. Ruffln, and P. W. Avi-rett, for appellants.

T. W. Bickett for appellee.

FTJRCHES, J. The defendants are druggists, and the plaintiff, according to the findings of the jury, applied to them for rhubarb, and they sold him podophyllin. This drug was given to his wife as rhubarb, from the poisonous effects of which she died. And this action is brought against the defendants for damages caused by their negligence in selling the plaintiff podophyllin for rhubarb. The defendants deny that they sold podophyllin for rhubarb, and allege that if they did, and It was the cause of the death of the Intestate, wife of plaintiff, still her death was caused by her own negligence, contributed to that of defendants. But the jury has found that the death was caused by the negligence of defendants, and not by the negligence of the intestate, contributed thereto; that intestate was not guilty of negligence in taking the drug, negligently sold by the defendants. These questions are settled by the jury, and must stand, unless the court has committed some error in not dismissing the plaintiff's action upon the motion of defendants, under the act of 1897, or in allowing improper evidence under the objection of defendants, or has failed to give some proper instruction asked by defendants, or has given the jury improper instructions as to the law governing the case, which has been properly taken and pointed by exceptions. We have examined the record, and fail to find any such errors. There are some exceptions to evidence, but none of them can be sustained. There are numerous prayers for instructions not given by the court as asked. But, in our opinion, every proper instruction asked by the defendants is given in the exhaustive written charge of the court; and, if there were error in the charge (and, If so.we have failed to see it), the exception to the charge is so general—"broadside"—that it could not be considered by the court. Bar-cello v. Hapgood, 118 N. C. 712, 24...