Claek, O. J.
It is alleged in the complaint, and there is evidence to prove the allegation, that the defendant was a tinner and metal worker and has for years operated a hardware store in Hickory in connection with which he does the work of roofing houses, guttering, cornices, etc., and that from time to time he sends out workers from his store and shop, not only in that town but in other places where he has the doing of tin and metal work in connection with contracts for the construction, equipment or repair of buildings, public and private; and that for the purpose of transporting his employees, tools and materials from place to place the defendant has for some time past maintained and operated a motor truck and regularly employed a driver therefor; that on 30 September, 1919, the defendant ordered two of his employees, Herbert Miller and Noah D. M. Huffman, the deceased, to Yaldese to do certain tin and metal work which he had contracted to do there, and undertook to convey them from Hickory to Yaldese in this automobile driven and controlled by Titus Hefner, the defendant’s driver; that on said journey said Titus Hefner operated the truck negligently, heedlessly and' recklessly so that it overturned and caught beneath it said Noah D. M. Huffman, who was so crushed, bruised and injured by the great weight of the truck falling on him that in a few moments thereafter he died; that the death of plaintiff’s intestate was proximately caused by and was due to the negligence and wrongful conduct of the defendant’s servant driver, the said Hefner, in his failure to exercise ordinary and reasonable care for the safety of plaintiff’s intestate while transporting him under defendant’s orders and on defendant’s business, and by the careless, heedless, and negligent manner in which the truck was driven in violation of the duty which the defendant owed to the deceased of safe carriage, and that said Titus Hefner was an unskilled, incompetent, unsuitable, incapable, inefficient and unsatisfactory person to operate a motor truck, and was negligent, careless and negligent in his manner of operating the same; all of which was known to the defendant prior to September, 1919, or in the exercise of reasonable care upon his part in the selection and retention of an employee for such purpose could and should have been known to him.
The answer alleges that the defendant’s employees generally used their bicycles in going to and from the trips, or by rail, but says that at certain times, for the convenience of his help and to save them cost, and at their request, he would transport them to their places of work, for which he uses a truck; that Titus Hefner was an experienced and careful driver; that on the occasion mentioned the deceased and Miller, [428] wbo were to do certain work at Yaldese, bad instructions to go by passenger train,' but that they prevailed upon J. Hefner, who it appears from the evidence superintended the business of said defendant in his absence, to let the said Titus Hefner carry them over to Yaldese by said truck, which was without the knowledge or consent of the defendant, and at the time said Titus Hefner was under the orders and command of said Huffman and Miller, who knew the experience and capacity of Titus Hefner as a truck driver. The defendant further avers that the overturning of the truck and the injury causing the death of deceased was not due to any negligence on the part of the defendant but accrued from some unforeseen and accidental cause when Hefner was driving the vehicle with care; and alleges that the deceased, Huffman, contributed to his injury by contributory negligence “in that the deceased was requested by Herbert Miller, in making the trip mentioned, to ride on the seat of the said motor truck, but that he negligently, carelessly, and heedless of his own safety, sat down on the floor of the body of the said truck with his feet and legs on the outside of the same, his feet resting on the running board, and that by so doing he negligently contributed to his own injury.” The following issues were submitted to the jury:
1. Was plaintiff’s intestate injured and killed by the negligence of the defendant as alleged in the complaint? Answer: “Yes.”
2. If so, did the plaintiff’s intestate, by his own negligence, contribute to his own injury, as alleged in the defendant’s answer? Answer: “Yes.”
Upon tbe verdict, judgment was entered in favor of the defendant, and the plaintiff appealed.
The first assignment of error was for the submission by the court, over plaintiff’s objection, of the second issue, upon the ground that the facts as alleged in the answer did not sustain such plea. There was no evidence offered of contributory negligence beyond the allegation as set out in the complaint, and the second assignment of error is that the court refused the following prayer to instruct the jury: “If you come to the consideration of the second issue, the court instructs you that there is no evidence of contributory negligence, and it is your duty to answer this issue No.’ ”
The court instructed the jury: “There is only one view of this case in which the court submits to you the second issue which has been read and explained, ‘Was plaintiff’s intestate guilty of contributory negligence in the way and manner in which he sat in the truck on the trip from Hickory to Yaldese?’ ” and the plaintiff excepted because nothing in the evidence tended to show that the sitting on the floor of the car in any wise contributed to the deceased’s death. There is no evidence tending to prove that the defendant’s sitting on the floor of the truck [429] witb bis feet on tbe running board was negligence, and still less tbat it contributed in any way to tbe injury from wbicb be died. Tbe burden being upon tbe defendant to prove contributory negligence, it was error to submit tbe issue wben there was no evidence to sbow negligence and tbat it was proximate cause.
A definition of contributory negligence is, “Some failure of duty wbicb- tbe deceased owed to bimself under tbe circumstances, and tbat such negligence cooperating with tbe negligence of the defendant, found in tbe first issue, was tbe proximate cause of tbe injury.” There was no causal connection shown tbat tbe sitting on tbe floor of tbe car by deceased witb bis feet on tbe running board affected in any way tbe driver’s carelessly driving out of tbe road and off tbe fill. Shearman & Redfield (5th Ed.), secs. 90-93, or contributed to tbe overturning of tbe truck, wbicb occurrence tbe defendant contended was accidental or due to some unknown cause.
Tbe court erred in refusing, upon tbe testimony, to charge tbat there was “no evidence of contributory negligence, and tbat it was tbe duty of tbe jury to answer tbat issue No.’ ” There was no controversy as to the position of tbe three occupants of tbe truck other than tbat tbe deceased sat on tbe edge of tbe truck witb bis feet on tbe running board. Tbe defendant offered no testimony tbat tbe deceased being there in any way caused the overturning of tbe truck, wbicb occurred because tbe driver, as they crossed a concrete bridge onto a low straight fill, suddenly turned bis steering wheel to tbe right, then to tbe left, then to tbe right again and drove tbe truck out of tbe road on tbe right-band side, tbe right wheels going over tbe right bank of tbe fill, and after running this way for 20 or 30 feet the truck turned over and Huffman was caught under it and crushed to death.
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Claek, O. J.
It is alleged in the complaint, and there is evidence to prove the allegation, that the defendant was a tinner and metal worker and has for years operated a hardware store in Hickory in connection with which he does the work of roofing houses, guttering, cornices, etc., and that from time to time he sends out workers from his store and shop, not only in that town but in other places where he has the doing of tin and metal work in connection with contracts for the construction, equipment or repair of buildings, public and private; and that for the purpose of transporting his employees, tools and materials from place to place the defendant has for some time past maintained and operated a motor truck and regularly employed a driver therefor; that on 30 September, 1919, the defendant ordered two of his employees, Herbert Miller and Noah D. M. Huffman, the deceased, to Yaldese to do certain tin and metal work which he had contracted to do there, and undertook to convey them from Hickory to Yaldese in this automobile driven and controlled by Titus Hefner, the defendant’s driver; that on said journey said Titus Hefner operated the truck negligently, heedlessly and' recklessly so that it overturned and caught beneath it said Noah D. M. Huffman, who was so crushed, bruised and injured by the great weight of the truck falling on him that in a few moments thereafter he died; that the death of plaintiff’s intestate was proximately caused by and was due to the negligence and wrongful conduct of the defendant’s servant driver, the said Hefner, in his failure to exercise ordinary and reasonable care for the safety of plaintiff’s intestate while transporting him under defendant’s orders and on defendant’s business, and by the careless, heedless, and negligent manner in which the truck was driven in violation of the duty which the defendant owed to the deceased of safe carriage, and that said Titus Hefner was an unskilled, incompetent, unsuitable, incapable, inefficient and unsatisfactory person to operate a motor truck, and was negligent, careless and negligent in his manner of operating the same; all of which was known to the defendant prior to September, 1919, or in the exercise of reasonable care upon his part in the selection and retention of an employee for such purpose could and should have been known to him.
The answer alleges that the defendant’s employees generally used their bicycles in going to and from the trips, or by rail, but says that at certain times, for the convenience of his help and to save them cost, and at their request, he would transport them to their places of work, for which he uses a truck; that Titus Hefner was an experienced and careful driver; that on the occasion mentioned the deceased and Miller, [428] wbo were to do certain work at Yaldese, bad instructions to go by passenger train,' but that they prevailed upon J. Hefner, who it appears from the evidence superintended the business of said defendant in his absence, to let the said Titus Hefner carry them over to Yaldese by said truck, which was without the knowledge or consent of the defendant, and at the time said Titus Hefner was under the orders and command of said Huffman and Miller, who knew the experience and capacity of Titus Hefner as a truck driver. The defendant further avers that the overturning of the truck and the injury causing the death of deceased was not due to any negligence on the part of the defendant but accrued from some unforeseen and accidental cause when Hefner was driving the vehicle with care; and alleges that the deceased, Huffman, contributed to his injury by contributory negligence “in that the deceased was requested by Herbert Miller, in making the trip mentioned, to ride on the seat of the said motor truck, but that he negligently, carelessly, and heedless of his own safety, sat down on the floor of the body of the said truck with his feet and legs on the outside of the same, his feet resting on the running board, and that by so doing he negligently contributed to his own injury.” The following issues were submitted to the jury:
1. Was plaintiff’s intestate injured and killed by the negligence of the defendant as alleged in the complaint? Answer: “Yes.”
2. If so, did the plaintiff’s intestate, by his own negligence, contribute to his own injury, as alleged in the defendant’s answer? Answer: “Yes.”
Upon tbe verdict, judgment was entered in favor of the defendant, and the plaintiff appealed.
The first assignment of error was for the submission by the court, over plaintiff’s objection, of the second issue, upon the ground that the facts as alleged in the answer did not sustain such plea. There was no evidence offered of contributory negligence beyond the allegation as set out in the complaint, and the second assignment of error is that the court refused the following prayer to instruct the jury: “If you come to the consideration of the second issue, the court instructs you that there is no evidence of contributory negligence, and it is your duty to answer this issue No.’ ”
The court instructed the jury: “There is only one view of this case in which the court submits to you the second issue which has been read and explained, ‘Was plaintiff’s intestate guilty of contributory negligence in the way and manner in which he sat in the truck on the trip from Hickory to Yaldese?’ ” and the plaintiff excepted because nothing in the evidence tended to show that the sitting on the floor of the car in any wise contributed to the deceased’s death. There is no evidence tending to prove that the defendant’s sitting on the floor of the truck [429] witb bis feet on tbe running board was negligence, and still less tbat it contributed in any way to tbe injury from wbicb be died. Tbe burden being upon tbe defendant to prove contributory negligence, it was error to submit tbe issue wben there was no evidence to sbow negligence and tbat it was proximate cause.
A definition of contributory negligence is, “Some failure of duty wbicb- tbe deceased owed to bimself under tbe circumstances, and tbat such negligence cooperating with tbe negligence of the defendant, found in tbe first issue, was tbe proximate cause of tbe injury.” There was no causal connection shown tbat tbe sitting on tbe floor of tbe car by deceased witb bis feet on tbe running board affected in any way tbe driver’s carelessly driving out of tbe road and off tbe fill. Shearman & Redfield (5th Ed.), secs. 90-93, or contributed to tbe overturning of tbe truck, wbicb occurrence tbe defendant contended was accidental or due to some unknown cause.
Tbe court erred in refusing, upon tbe testimony, to charge tbat there was “no evidence of contributory negligence, and tbat it was tbe duty of tbe jury to answer tbat issue No.’ ” There was no controversy as to the position of tbe three occupants of tbe truck other than tbat tbe deceased sat on tbe edge of tbe truck witb bis feet on tbe running board. Tbe defendant offered no testimony tbat tbe deceased being there in any way caused the overturning of tbe truck, wbicb occurred because tbe driver, as they crossed a concrete bridge onto a low straight fill, suddenly turned bis steering wheel to tbe right, then to tbe left, then to tbe right again and drove tbe truck out of tbe road on tbe right-band side, tbe right wheels going over tbe right bank of tbe fill, and after running this way for 20 or 30 feet the truck turned over and Huffman was caught under it and crushed to death.
There was allegation and much evidence offered by tbe defendant tending to show tbat tbe deceased was killed by an accident and without any negligence on tbe part of the driver of tbe truck; also tbat tbe deceased and Miller were in charge of tbe truck and tbe driver was under their orders; also tbe defense was set up tbat tbe deceased assumed tbe risk. Tbat tbe deceased and Hefner were fellow servants was not pleaded; and, on tbe contrary, both tbe complaint and tbe answer alleged tbat they were not. But all these defenses were matters arising upon tbe first issue, “Was plaintiff’s intestate injured and killed by tbe negligence of tbe defendant as alleged in tbe complaint, as to wbicb the jury responded ‘Tes.’ ” Tbe defendant made no exception as to tbat issue and has not appealed, and we must take it tbat said issue was properly submitted without error in tbe charge of tbe court or in tbe admission of evidence.
[430] We think there was error in the particulars above pointed out, in the submission of the issue as to contributory negligence, as to which the burden of proof was upon the defendant and as to which neither the allegations in the answer nor the proof, which did not go beyond said allegations, justified the submission of said issue to the jury.
On appeal, it is in the discretion of the court whether to restrict a new trial to the issue or issues affected by the error. Strother v. R. R., 123 N. C., 199, and numerous cases there cited. "Wherever the error is confined to one or more issues separable from the others, and it appears to us that no prejudice will result from such course, this Court usually grants a new trial restricted to such issues. Lumber Co. v. Branch, 158 N. C., 251, which the plaintiff requests us to do in this case. This the Court could do, but we are of the opinion that, as this case must go back for trial upon the issue of contributory negligence and of damages, that we should direct a new trial upon all the issues.
New trial.
Stacy, J., concurs in result only.