Lay v. Richmond & Danville Railroad

Citations

• 106 N.C. 404

Syllabus

<p>Damages — Contributory Negligence — Proximate Cause- — -Judge’s Charge— Trespass— Crossing.</p> <p>1. In an action against a railroad for injury of a horse, plaintiff showed that the horse had i alien on defendant’s track at a foot-crossing on account of getting his foot hung by a defectively driven spike, and that before he could get him off he was struck by defendant’s dump-car, in charge of its agents, who were called on to stop more than a hundred yards away, the Court charged the jury that though the plaintiff may have been negligent in entering defendant’s tract, said negligence was not the approximate cause of the injury complained of, and they should respond to the second is?ue, No: Held to be error.</p> <p>2. The issue of contributory negligence ought not to have been withdrawn from the jury. For aught that appears, the plaintiff might have had reason to apprehend injury to his horse at that place, and, if so, it was negligence to take him over it.</p> <p>3. The trespass, if admitted, does not prevent a recovery if defendant, by ordinary care, could have avoided the injury.</p> <p>4. When the question of contributory negligence arises at all, the better practice is to submit a separate issue upon it.</p>