Emry v. Raleigh & Gaston Railroad

Shepherd, J.

(concurring): Tim defendant prayed the Court to instruct the jury that upon the plaintiff’s own evidence there was contributory negligence, and we have held *595 that the instruction should have been given. This is sufficient to dispose of the appeal, but as the case goes back fora new trial, and the other question which has been presented and so extensively discussed will very likely arise, it is proper that it should now be passed upon.

No principle is more firmly established by this Court than that negligence and ordinary care are mixed questions of law and fact. If the facts are undisputed, it is for the Court to decide; if they are controverted, or if the inferences to be drawn from them are doubtful, the jury must find such facts or inferences and the Court must instruct them as to the law applicable to the same. In many of the States a contrary view prevails, and it is held that such a “ broadcast” charge (as Pearson, J., characterizes it in Avera v. Sexton, 13 Ired., 247 ) as the general principle of “ the prudent man ” must.be given to the jury. This ruléis not applied alone to those cases in which no special instructions are asked, but prevails generally, because, with some exceptions, the standard of duty, as embodied in such a general proposition, is to be applied to the various phases of the evidence by the jury, and they are thus practically, in many instances, constituted the sole judges of what is or is not negligence and ordinary care. That such is not the law in North Carolina, is so manifest that it is hardly necessary to cite the numerous decisions of this Court in which the principle stated has been, mol emphatically and unqualifiedly repudiated.

Judge Battle, delivering the opinion in Brock v. King, 3 Jones, 45 (after citing many decisions in which the principle is explicitly^ denied), said: “After these repeated decisions, so recently made, we may well adopt the language of the Court (Ruffin, C. J.) in Beale v. Roberson, 7 Ired., 280 , upon an analagous subject: ‘It would seem then, that making a question on this subject, must he regarded as an attempt to move fixed things, and cannot be successful.’” In support of a contrary view, we are referred by counsel to *596 Farmer v. Railroad, 88 N. C., 564 . A perusal of that case will show that the point under consideration was not presented to the Court, but that the decision turned not upon the form of the charge, but simply upon the question whether the defendant would be liable for negligence where the plaintiff’s negligence contributed to the injury, the Court holding that the defendant would be liable, notwithstanding the plaintiff’s preceding negligence, if the defendant, by the exercise of proper care, could have avoided the injury. This was also held in Gunter v. Wicker, 85 N. C., 310 , and it will be noted that the prayer for instructions in that case, and those given by the Court, contained no such general proposition as contended for, but were based entirely upon certain particular phases of fact which arose upon the testimony. Neither was the point decided in Turrentine v. Railroad, 92 N. C., 638 . In that case the Court, in speaking of such care as a prudent man would and ought to take for his safety, was not discussing the form of the charge (for the charge and instructions do not appear in the case), but only “the counterpart of the rule, as declared in Gunter v. Railroad, supra; Owens v. Railroad, 88 N. C., 502 ; Farmer v. Railroad, supra; Aycock v. Railroad, 89 N. C., 321 .”

In Troy v. Railroad, 99 N. C., 298 , the exceptions involving the question we are considering were not pressed, and were, therefore, not discussed by the Court. Neither is the question raised in McAdoo v. Railroad, 105 N. C., 140 , and Deans v. Railroad, 107 N. C., 689 .

There are many cases like the foregoing in which the Court, in passing upon instructions to juries, speaks of the rule of the prudent man as a standard of duty whereby neg-' ligence and ordinary care are to be measured and determined. It is necessary in expressing its opinion in such, and indeed in nearly all cases that it should revert to general principles of lawr, but it is difficult to understand how, in doing this, they are to be considered as authorizing such *597 general principles to be charged to the jury. An example may be found in Avera v. Sexton, supra, where Ruffin, C. J., states the general rule of the prudent man, and applies it for the guidance of the Court to the facts, but expressly declares that such a rule should not be submitted to the jury.

It will be seen, therefore, that no decision of this Court has been produced in which the point has been expressly decided in support of the position contended for. On the other hand we have a long and unbroken line of decisions in which the very question was presented and decided to the contrary.

In Biles v. Holmes, 11 Ired., 16 , the plaintiff sued for damages by reason of injuries to a slave, resulting from negligence or a want of ordinary care by the defendant. There was no prayer for special instructions, and the Court charged the rule of the prudent man. PeaksoN, J., delivering the opinion, said: “ What amounts to ordinary care is a question for the Court. The Judge below erred in leaving it to the jury. Whether the proof establishes particular facts is for the jury, but what is the legal effect of these facts, supposing them to exist, is for the Court. Accordingly, it is settled that ordinary care, reasonable time and probable cause, the facts being admitted or proved, are questions of law. Herring v. Railroad, 10 Ired., 402 ; Swaim v. Stafford, 3 Ired., 286 . If these were not questions of law, no rule would ever be established, and the legal effect of certain facts, like their existence, would in all cases depend upon the finding of a jury, with no mode of having its correctness judged by a higher tribunal.” Here we have a case in which the question was directly presented, and the principle of the decision has been repeatedly recognized in a number of cases. In Heathcock v. Pennington, 11 Ired., 640 , the action was also for injuries to a slave by reason of the negligence of the defendant. No special instructions were asked, and the Court left the question of ordinary care to the jury. The Court said (Ruffin, C. J.) that it is “ erroneous to leave the question of *598 due care to the jury, since it is the province and duty of the Court to advise them on that point, supposing them to be satisfied of certain facts.” For this position Biles v. Holmes is cited, and the Court said that “the judgment would be reversed if the verdict did not appear to be what it ought to have been if the Court had given the proper direction.” In Hathaway v. Hinton, 1 Jones, 243 , the plaintiff sued an overseer of the public road for special damages for injuries arising by reason of the defendant’s failure to keep the road in proper repair. No special instructions seem to have been asked, and the Court charged the rule of the prudent man. The Court (Battle, J.) said “there can be no doubt the Judge ought to have decided the question himself, as has often been ruled by this Court,” and a new trial was granted. To the same effect is Glenn v. Railroad, 63 N. C., 510 . These cases are clearly in point, and are cited with approval in Brock v. King, supra; Pleasants v. Railroad, and many other decisions. Indeed, this Court has gone so’ far as to hold that, even in the absence of a prayer for special instructions, the Court cannot leave the question.of reasonable skill and due care in a physician to the jury. Woodard v. Hancock, 7 Jones, 384 . The Court said “ a division of the question in such cases, between the Court and jury, is now considered settled, and, therefore, where there is a state of facts conceded or proved, it becomes the duty of the Court to draw the conclusion as matter of law. If there be a conflict of testimony ¡resenting different views of the case, it is in like manner the Court’s duty, upon these views, to draw the proper conclusions.” In Smith v. Railroad, 64 N. C, 235, the Court said (Reade, J.) that “where the facts are agreed upon, or otherwise appear, what is ordinary care is a question for the Court; where the facts are in dispute, the proper course for the Judge is to explain what would be ordinary care under certain hypotheses as to facts, and leave the jury to apply the law to the facts as they find them.” In a case between these very parties, in 105 *599 N. C., 48 , this Court took occasion to declare that charging the rule of the prudent man “ is not consistent with the decisions of the Court on that subject.”

From these and other cases that might be cited, it must be regarded as absolutely settled by along line of judicial decisions, that such a general charge is not permissible in North Carolina. Whatever may be the decisions in other States, and whatever the text-books may say upon the subject (and some of these amount to but little more than a collection of such decisions), we cannot see how (even if persuaded that our rule should be relaxed in some instances) we can reverse what has long been regarded as settled law in this State. It would,indeed,seem like “an attempt to move fixed things”; and wre think that if any change is desirable, it should be made by the Legislature, “ for it is an established rule,” says Blackstone (1 vol., 70), “ to abide by former precedents where the same points come again in litigation, as well to keep the scales of justice even and steady and not liable to waver with every new Judge’s opinion.” Stare decisis et non quieta movere. It is true that precedents may not be followed when “ flatly unreasonable or unjust,” but we can see no reason for reversing the uniform decisions of this Court, extending through a period when it was adorned by some of the greatest jurists in this country, simply because these views are not in accord with a number of decisions from other States, which decisions, in many instances, are not even consistent with each other.

We do not feel that we are imposing any additional burdens upon the Judges by adhering to the principle as established in this Stale, and when it is said that the Judge is to charge the jury as to the various phases arising upon the testimon\r, I do not understand that the Court is prescribing any rule which at all differs from that laid down in McKinnon v. Morrison, 104 N. C., 354 ; Boon v. Murphy, 108 N. C., 187 , and other cases.

*600 A mere omission to charge as to a particular aspect of the testimony when not specially requested so to do, is no more ground for a new trial in cases of this character than in others. Where, however, there is a total failure to charge the law, or where a proposition of law is submitted to the jury, and is not corrected by the verdict, it is ground for a new trial.1

Believing that the entire current of judicial decision in this State is in favor of the principle as declared in Biles v. Holmes, supra, I cannot concur in any view, however plausible or ingenious it maj7 be, which looks to such a radical change in our law.

As I have remarked, if the law, as established, is • to be abrogated or modified, the Legislature, and not the Court, should take the responsibility; and certainly should this be so when we are asked by counsel to reverse our own decisions upon the authorities from other States. If such force is to be given to the decisions of foreign Courts, we may at once abandon all hope of having anything settled as law in North Carolina.

I am authorized to say that the Chief Justice concurs in this opinion.

Davis and Clark, JJ., concur in the above opinion.