WiNborne, J.
The questions, decisive of this appeal, are these: (1) Is there sufficient evidence as shown in the record to require the submission of an issue as to contributory negligence? (2) If so, is there error in the charge in respect to the burden of proof as it relates to the issue of contributory negligence? Both questions deserve an affirmative answer.
In considering the first question it must be borne in mind that the defendants base their plea of contributory negligence on two theories: (1) That the plaintiff and Morse, the driver of the patrol car in which plaintiff was riding at the time of the collision, were engaged in a joint enterprise, and that Morse was negligent in the respects averred in the further answer of defendants, and that his negligence is imputable to plaintiff; and (2) that plaintiff, by his own negligence, contributed 'to his injuries.
What is a joint enterprise is a question of law for the court. Whether a joint enterprise exists has to be determined to a great extent from the facts in the particular case.
Jernigan v. Jernigan,
207 N.C. 831, 178 S.E. 587. If the facts be in dispute, the issue is for the jury. But if the facts be not in dispute, the whole resolves itself into a question of law. For the rule in similar question, see
Miller v. Johnston,
173 N.C. 62, 91 S.E. 593;
Brown v. Hodges,
232 N.C. 537, 61 S.E. 2d 603.
The annotators say that the authorities are generally agreed that if two or more persons are engaged in a joint enterprise involving the operation of an automobile, and one of them is injured by the negligence of a third party and the concurring negligence of the other party to the joint enterprise, the latter’s negligence is imputed to the one injured, and will bar a recovery against the third person. Annotations 62 A.L.R. 440, 85 A.L.R. 630.
Tbis doctrine of joint enterprise is recognized in North Carolina in numerous cases. Much has been written by this Court on what is not, rather than what is, a joint enterprise. However, the principle is clearly stated in
Albritton v. Hill,
190 N.C. 429, 130 S.E. 5, in this quotation: “. . . ‘The circumstances must be such as to show that the occupant and the driver together had such control and direction over the automobile as to be practically in the joint or common possession of it. Parties cannot be said to be engaged in a joint enterprise unless there is a community of interest in the objects or purposes of the undertaking, and an equal right to direct and govern the movement of each other with respect thereto. Each must have some voice and right to be heard in its control and management.’ Huddy on The Law of Automobiles, 893.” See
Pusey v. R. R.,
181 N.C. 137, 106 S.E. 452;
Williams v. R. R.
(concurring opinion with citations), 187 N.C. 348, 121 S.E. 608;
Charnock v. Refrigerating Co.,
202 N.C. 105, 161 S.E. 707;
Newman v. Coach Co.,
205 N.C. 26, 169 S.E. 808;
Johnson v. R. R.,
205 N.C. 127, 170 S.E. 120. See also citations in
Haney v. Lincolnton,
207 N.C. 282, 176 S.E. 573; also Annotation 80 A.L.R. 312.
In
Charnock v. Refrigerating Co., supra,
it is said: “A common enterprise in riding is not enough; the circumstances must be such as to show that plaintiff and the driver had such control over the car as to be substantially in the joint possession of it,” citing
Albritton v. Hill, supra.
Moreover, Blashfield, treating the subject, says: “An essential, and perhaps the central, element which must be shown in order to establish a joint enterprise is the existence of joint control over the management and operation of the vehicle and the course and conduct of the trip. There must ... in order that two persons riding in an automobile, one of them driving, may be deemed engaged in a joint enterprise for the purpose of imputing the negligence of the driver to the. other, exist concurrently two fundamental and primary requisites, to wit, a community of interest in the object and purpose of the undertaking in which the automobile is being driven and an equal right to direct and govern the movements and conduct of each other in respect thereto. The mere fact that the occupant has no opportunity to exercise physical control-is immaterial.” Cyclopedia of Automobile Law and Practice. Blashfield 4, Sec. 2372.
“The control required is the legal right to exercise control. It does not necessarily require that there be actual physical control.”
Murphy v. Keating,
204 Minn. 269, 283 N.W. 389. To like effect are
Howard v. Zimmerman,
120 Kan. 77, 242 P. 131;
Crescent Motor Co. v. Stone,
211 Ala. 516, 101 So. 49.
It may be noted also that a police officer, unknown to common law, is a creature of statute, and as such has, and can only exercise such powers as are given to him by the Legislature, expressly or derivatively.
S. v.
Freeman,
86 N.C. 683;
Martin v. Houck,
141 N.C. 317, 54 S.E. 29;
Wilson v. Mooresville,
222 N.C. 283, 22 S.E. 2d 907. The law applies alike to plaintiff and to E. L. Morse, as policemen. Thus when they became policemen of the city of Goldsboro, the existing laws pertaining to the position, entered alike into, and became a part of the relationship thus established as to each of them. In law, as officers, they attained equal rank. And their testimony, shown in the record on this appeal, indicates that the automobile was furnished by the city for their joint use in performing in common the activities of patrolling, in which they were engaged, and that each had an equal right to direct and govern the movements and conduct of the other in respect thereto. The mere fact that only one of them, at a time, could actually physically control the car, is immaterial.
Therefore, in the light of these principles applied to the evidence shown in the record on appeal, there is evidence to support a finding that plaintiff and E. L. Morse, at the time and place of the collision, were engaged in a joint enterprise. Likewise there is evidence tending to support the averment made by defendants as to negligence of E. L. Morse in the operation of the patrol car at the time and place of the collision.
Moreover, there is evidence tending to support the averments made by defendants as to negligence on the part of plaintiff.
Now, as to the second question: Plaintiff’s Exception No. 19 is directed to this portion of the charge: “Gentlemen of the jury, another cardinal principle the court will ask you to bear in mind throughout the entire deliberation and discussion of this testimony in arriving at your verdict and that is, that the laboring oar, the burden, is upon the plaintiff in this case to satisfy you by the greater weight of the evidence before he can recover in this action.” And plaintiff’s Exception No. 24 is directed to this portion of the charge: “The defendant does not have to prove to you anything to your satisfaction; there is no burden upon this defendant with respect to the degree of proof that it will show to you, or has shown to you, but the burden is upon the plaintiff to satisfy you by the evidence and by its greater weight that he is entitled to recover.” Both of these exceptions are well taken.
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WiNborne, J.
The questions, decisive of this appeal, are these: (1) Is there sufficient evidence as shown in the record to require the submission of an issue as to contributory negligence? (2) If so, is there error in the charge in respect to the burden of proof as it relates to the issue of contributory negligence? Both questions deserve an affirmative answer.
In considering the first question it must be borne in mind that the defendants base their plea of contributory negligence on two theories: (1) That the plaintiff and Morse, the driver of the patrol car in which plaintiff was riding at the time of the collision, were engaged in a joint enterprise, and that Morse was negligent in the respects averred in the further answer of defendants, and that his negligence is imputable to plaintiff; and (2) that plaintiff, by his own negligence, contributed 'to his injuries.
What is a joint enterprise is a question of law for the court. Whether a joint enterprise exists has to be determined to a great extent from the facts in the particular case.
Jernigan v. Jernigan,
207 N.C. 831, 178 S.E. 587. If the facts be in dispute, the issue is for the jury. But if the facts be not in dispute, the whole resolves itself into a question of law. For the rule in similar question, see
Miller v. Johnston,
173 N.C. 62, 91 S.E. 593;
Brown v. Hodges,
232 N.C. 537, 61 S.E. 2d 603.
The annotators say that the authorities are generally agreed that if two or more persons are engaged in a joint enterprise involving the operation of an automobile, and one of them is injured by the negligence of a third party and the concurring negligence of the other party to the joint enterprise, the latter’s negligence is imputed to the one injured, and will bar a recovery against the third person. Annotations 62 A.L.R. 440, 85 A.L.R. 630.
Tbis doctrine of joint enterprise is recognized in North Carolina in numerous cases. Much has been written by this Court on what is not, rather than what is, a joint enterprise. However, the principle is clearly stated in
Albritton v. Hill,
190 N.C. 429, 130 S.E. 5, in this quotation: “. . . ‘The circumstances must be such as to show that the occupant and the driver together had such control and direction over the automobile as to be practically in the joint or common possession of it. Parties cannot be said to be engaged in a joint enterprise unless there is a community of interest in the objects or purposes of the undertaking, and an equal right to direct and govern the movement of each other with respect thereto. Each must have some voice and right to be heard in its control and management.’ Huddy on The Law of Automobiles, 893.” See
Pusey v. R. R.,
181 N.C. 137, 106 S.E. 452;
Williams v. R. R.
(concurring opinion with citations), 187 N.C. 348, 121 S.E. 608;
Charnock v. Refrigerating Co.,
202 N.C. 105, 161 S.E. 707;
Newman v. Coach Co.,
205 N.C. 26, 169 S.E. 808;
Johnson v. R. R.,
205 N.C. 127, 170 S.E. 120. See also citations in
Haney v. Lincolnton,
207 N.C. 282, 176 S.E. 573; also Annotation 80 A.L.R. 312.
In
Charnock v. Refrigerating Co., supra,
it is said: “A common enterprise in riding is not enough; the circumstances must be such as to show that plaintiff and the driver had such control over the car as to be substantially in the joint possession of it,” citing
Albritton v. Hill, supra.
Moreover, Blashfield, treating the subject, says: “An essential, and perhaps the central, element which must be shown in order to establish a joint enterprise is the existence of joint control over the management and operation of the vehicle and the course and conduct of the trip. There must ... in order that two persons riding in an automobile, one of them driving, may be deemed engaged in a joint enterprise for the purpose of imputing the negligence of the driver to the. other, exist concurrently two fundamental and primary requisites, to wit, a community of interest in the object and purpose of the undertaking in which the automobile is being driven and an equal right to direct and govern the movements and conduct of each other in respect thereto. The mere fact that the occupant has no opportunity to exercise physical control-is immaterial.” Cyclopedia of Automobile Law and Practice. Blashfield 4, Sec. 2372.
“The control required is the legal right to exercise control. It does not necessarily require that there be actual physical control.”
Murphy v. Keating,
204 Minn. 269, 283 N.W. 389. To like effect are
Howard v. Zimmerman,
120 Kan. 77, 242 P. 131;
Crescent Motor Co. v. Stone,
211 Ala. 516, 101 So. 49.
It may be noted also that a police officer, unknown to common law, is a creature of statute, and as such has, and can only exercise such powers as are given to him by the Legislature, expressly or derivatively.
S. v.
Freeman,
86 N.C. 683;
Martin v. Houck,
141 N.C. 317, 54 S.E. 29;
Wilson v. Mooresville,
222 N.C. 283, 22 S.E. 2d 907. The law applies alike to plaintiff and to E. L. Morse, as policemen. Thus when they became policemen of the city of Goldsboro, the existing laws pertaining to the position, entered alike into, and became a part of the relationship thus established as to each of them. In law, as officers, they attained equal rank. And their testimony, shown in the record on this appeal, indicates that the automobile was furnished by the city for their joint use in performing in common the activities of patrolling, in which they were engaged, and that each had an equal right to direct and govern the movements and conduct of the other in respect thereto. The mere fact that only one of them, at a time, could actually physically control the car, is immaterial.
Therefore, in the light of these principles applied to the evidence shown in the record on appeal, there is evidence to support a finding that plaintiff and E. L. Morse, at the time and place of the collision, were engaged in a joint enterprise. Likewise there is evidence tending to support the averment made by defendants as to negligence of E. L. Morse in the operation of the patrol car at the time and place of the collision.
Moreover, there is evidence tending to support the averments made by defendants as to negligence on the part of plaintiff.
Now, as to the second question: Plaintiff’s Exception No. 19 is directed to this portion of the charge: “Gentlemen of the jury, another cardinal principle the court will ask you to bear in mind throughout the entire deliberation and discussion of this testimony in arriving at your verdict and that is, that the laboring oar, the burden, is upon the plaintiff in this case to satisfy you by the greater weight of the evidence before he can recover in this action.” And plaintiff’s Exception No. 24 is directed to this portion of the charge: “The defendant does not have to prove to you anything to your satisfaction; there is no burden upon this defendant with respect to the degree of proof that it will show to you, or has shown to you, but the burden is upon the plaintiff to satisfy you by the evidence and by its greater weight that he is entitled to recover.” Both of these exceptions are well taken. "While the burden of proof as to the first issue, that is, as to the negligence of defendant, rests upon the plaintiff, the burden of proof as to affirmative defenses is upon the defendant.
Pittman v. Downing,
209 N.C. 219, 183 S.E. 362. The plea of contributory negligence is an affirmative defense, and when relied upon by defendant, the statute, G.S. 1-139, puts the burden of proving it on the defendant. Among cases so holding are these:
Wallace v. R. R.,
104 N.C. 442, 10 S.E. 552;
Cox v. R. R.,
123 N.C. 604, 31 S.E. 848;
Tyree v. Tudor,
183 N.C. 340, 111 S.E. 714;
Cherry v. R. R.,
185 N.C. 90, 116 S.E. 192;
Ramsey v. Furniture Co.,
209 N.C. 165, 183 S.E. 536;
Pittman v. Downing, supra; Bundy v. Powell,
229 N.C. 707, 51 S.E. 2d 307.
Defendants, however, urge that even if it be conceded that the court erred in the charge, such error should not entitle plaintiff to a new trial,—
Munday v. Bank,
211 N.C. 276, 189 S.E. 779,—earnestly contending that they were entitled as a matter of law to a nonsuit on either the issue of contributory negligence or on the issue of the negligence of the driver while engaged in a joint enterprise. TIence a new trial would be a useless procedure. As to this contention, it is sufficient to say that the question of nonsuit is not presented on this appeal, and may not be considered.
Other assignments of error are not treated, since they may not recur upon another trial.
For error indicated above, a new trial is ordered.
New trial.