Nichols v. Champion Fibre Co.

128 S.E. 471, 190 N.C. 1, 1925 N.C. LEXIS 1

• Court: Supreme Court of North Carolina
• Decided: June 24, 1925
• Status: Published

Opinion

CONNOR, J.

Tbe jury by its verdict has found tbat plaintiff was not injured by tbe negligence of Setzer or Jones, employees of their co-defendant, Champion Fibre Company. Neither of them is, therefore, liable to plaintiff for damages as alleged in the complaint. The jury has further found, that plaintiff was injured by the negligence of defendant, Champion Fibre Company, as ■ alleged in the complaint. This defendant, upon the verdict, is liable to plaintiff, and the judgment that he recover of the Champion Fibre Company the sum assessed by the jury as his damages must be affirmed, unless the assignments of error, upon this appeal, are sustained.

Defendant, Champion Fibre Company, assigns as error the refusal of the court to sign judgment tendered by it, upon the verdict of the jury and the charge of the court. This assignment of error is based • upon the contention that, notwithstanding the several allegations of negligence in the complaint, there was evidence only upon the specific allegations that plaintiff’s injuries were caused by the wrongful acts of defendants, Setzer and Jones, employees of their eodefendant, and that the court instructed the jury only upon the law applicable to the matters involved in these allegations. The jury having found that plaintiff was not injured by the negligence of either of its employees, Champion Fibre Company contends ¡that it is not liable, as their employer, to plaintiff, and that the court should have so adjudged.

Plaintiff contends that there were both allegations and evidence that Champion Fibre Company, his employer, failed to perform certain primary, nondelegable duties which it owed him as its employee, and that such failure was the proximate, or at least concurrent, cause of his injuries. Plaintiff further contends that his allegations in these respects are sustained by the verdict, and that this assignment of error ought not to be sustained.

If each and all the allegations of negligence, set out in the complaint, involve only the conduct of Setzer and Jones, employees of Champion Fibre Company, and the liability of said company arises solely from the application of the principle of respondent superior, the assignment of error must be sustained, for upon such allegations if the employee or servant is not liable it must follow that the employer or master is equally free from liability. Bradley v. Rosenthal, 97 Pac., 875; Doremus v. Root, 63 Pac., 572; Gressler v. Brown, 192 Pac., 417; Williford v. Kansas City R. Co., 154 Fed., 514; New Orleans & N. E. R. Co., 142 U. S., 18. On the other hand, if there are allegations of negligence, involving not only the conduct of the employees, but also the conduct of the common employer, and such conduct of the employer as alleged is in breach of one or more of the primary, nondelegable duties of the employer to the injured employee, 'then the finding of the jury that the injuries sustained by the employee were not caused by the negligence of his fellow-employees, but was caused by the negligence of the employer,'does not exonerate the employer. The employer is liable, even if the negligence of the employee concurred with that of the employer in causing tbe injury as the proximate cause thereof. Beck v. Chair Co., 188 N. C., 743; Thomas v. Lawrence, 189 N. C., 521. When the negligence of the employee is alleged as the only and exclusive cause of the injury and the allegation is not sustained by the verdict the employer cannot be held liable, for his liability is dependent upon the negligence of his employee, and not upon his own conduct.

The five several, specific allegations of negligence, set out in the complaint, as summarized in plaintiff’s brief, are as follows:

(a) The failure of defendant company to have and promulgate rules, orders and signals for the safe and proper movements of its trains;

(b) Its failure to furnish a safe and prudent trainmaster;

(e) Its failure to furnish the plaintiff a safe and suitable place to stand on its logging cars while performing his duties;

(d) The negligent order of its trainmaster, Charley Setzer, upon approaching the Delwood Switch;

(e) The negligent manner in which George H. Jones, the engineer, operated the train after receiving such order.

If the evidence submitted to the jury was sufficient for them to find therefrom facts, which, under the instructions of the court as to the law applicable to these facts, sustain either of the allegations of negligence, as set out in the complaint, and if the jury further found that such negligence was the proximate cause of the injuries to plaintiff, resulting in damages, then plaintiff is entitled to judgment that he recover such sum as the jury may assess as damages. His right of recovery is not dependent upon proof that all his allegations of negligence are sustained. If defendant, by its negligence in any respect, as alleged in the complaint, caused plaintiff’s injuries, or if' either of the defendants, Setzer or Jones, employees of Champion Fibre Company, by his negligence, as alleged, caused the injuries, then in either event defendant is liable. Liability of the master may be either primary, as arising from injuries caused by breach of duty which the master owes, and which he cannot delegate, or secondary, as arising from the maxim qui facit per alium facit per se. “Where several grounds of liability are alleged, proof of one will be sufficient to authorize a recovery.” 20 R. C. L., 177, and cases cited in note. Farnon v. Mines Co., 50 Utah 295, 167 Pac., 675, 9 A. L. R., 248.

There was evidence sufficient to be submitted to the jury upon the allegations of a breach of the primary duties, or at least of one of them, alleged in the complaint, and that such breach was the proximate, or at least concurring, cause of plaintiff’s injury. As there are both allegations and evidence supporting the answer to the first issue, defendant’s first assignment of error cannot be sustained. There was no error in the refusal of the court to sign judgment tendered by defendant.

Defendant further assigns as error the failure of the court in the charge to the jury to comply with the requirements of C. S., 564. This statute makes it the duty of 'the judge presiding at a trial, in which issues are submitted to the jury, “to state in a plain and correct manner the evidence given in the case and to declare and explain the law arising thereon.” Defendant contends that his Honor did not in his charge declare and explain the law applicable to the facts as the jury might find them to be from the evidence, but simply stated the contentions of the parties, both as to the facts and as to the law. There are no exceptions to the charge as given, nor were there any prayers for special instructions.

His Honor charged the jury as follows: “In order to establish actionable negligence the plaintiff is required to show by the greater weight of the evidence, first, that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff under the circumstances in which they were placed, proper care being'that degree of care which a prudent man should use under like circumstances when charged with a like duty; second, that such negligent breach of duty was the proximate cause of the injury.” “You will notice that the law does not require an extraordinary amount of care, nor is it satisfied with a small amount, but it is that degree of care which a man of ordinary prudence would exercise under the same circumstances.”

His Honor then stated fully and at length the contentions of plaintiff and defendants upon the issues. He concludes the charge with the following words, “You have heard the evidence and heard the arguments of counsel. It is purely a question of fact for you to determine. The court cannot have any opinion about it. If the lawyers on either side have given you an opinion it is something that is incompetent, because you are the only men who have any right to have a legal opinion. The witnesses can tell you the facts and then taking all the facts you should balance it up and measure it mentally and then say how you decide each issue in proportion to how you find the facts to be.”

We do not find in the charge any instruction to the jury as to the law arising upon and applicable to the facts which they may find from the evidence. 'His Honor did not declare and explain the duties which the law imposed upon defendant as employer of plaintiff with respect to any of the matters involved in the allegations of negligence. Nor did he instruct the jury as to the law with respect to the breach of any of these duties, and the relation of such breach to the injuries as the proximate or concurrent 'cause, thereof. The statement of the general principles of law, without an application to the specific facts involved in the issue, is not a compliance with the provisions of the statute. Hauser v. Furniture Co., 174 N. C., 463; S. v. Merrick, 171 N. C., 788.

Counsel had doubtless argued the whole case, “as well of law as of fact to the jury,” as they had a right to do. 0. S., 203. The jury was instructed that the opinions of the lawyers arguing the case, both as to the law and the facts, were “incompetent because you are the only men who have a right to have a legal opinion.” It is of course, elementary that while the jury must determine the facts from the evidence, it is both the function and duty'of the judge to instruct them as to the law applicable to the facts. The answers to the issues submitted in this case are not to be determined altogether by the facts; each issue involved matters of law, and the jury should have been instructed by the judge as to the law. While counsel may argue the law of the case to the jury, both plaintiff and defendant are entitled, as a matter of right, to have the judge declare and explain the law arising on the evidence. A failure to comply with the statute must be held as error. The error was not waived in this case by failure of defendant to request special instructions. An answer to an issue, not supported by evidence or contrary to the evidence is objectionable; an answer determined by the jury, without instructions by the judge as to the law involved, is no less objectionable. Liability for negligence arises from the application of well-settled general principles of law to the facts of specific cases; it is not to be determined solely by the jury; the judge has his function and his duty; actionable negligence is a mixed question of law and fact— no less of law, to be determined by the judge, than of fact, to be determined by the jury.

In this case, the answer to the issue fixing defendant with liability for $7,000 was made by the jury, without instruction from the judge as to the law. The assignment of error must be sustained. Upon the issues arising on the pleadings between plaintiff and defendant, appellant, there must be a

New trial.