#### JOSEPH DUNN v. THE WILMINGTON AND WELDON RAILROAD COMPANY.

(Decided April 10, 1900.)

Contributory Negligence — Prayer for Special Instruction— ■Judge’s Charge — Proximate Cause — Issues.

1. A prayer for special instruction by the defendant upon the issue as to contributory negligence, which is clear and correct, ought to be given, and it is error to refuse; the error is not cured by the general charge of the Court as to that issue, which in srxbstance gives the defendant’s prayer, but adds thereto the expression, “and that this toas the proximate cause of the injury.”

2. Proximate cause, when me evidence is conflicting is a question for the jury under proper instruction, but not to be considered by them until they find that the plaintiff was guilty of contributory negligence.

3. Where the issues as to negligence and contributory negligence are both fomid in the affirmative, then the inquiry is raised, under the usual third issue, whether the causes were concurrent, and if not, which was proximate, the usual third issue being: Could defendant, notwithstanding the negligence of plaintiff, have pre- ■ vented the injury by the exercise of ordinary care?

Civil ActioN to recover damages for personal injury occasioned by negligence of defendant, tried before Bryan, J., at December Team, 1899, of DupliN Superior Court. Former trial reported in 124 N. C., 252.

*344The issue-s, evidence, prayer for special instruction, and charge of the Court are recapitulated in the opinion.

There wa,s a verdict in favor of plaintiff for $500. Judgment accordingly. Appeal by defendant.

Messrs. Junius Danis, and //. L. Bievens, for appellant.

Messrs. Alien. £ Dortch, and Simmons, Dou & Ward, for appellee.

Faircloth, C. J.

The plaintiff alleges that he was injured by the negligence of the defendant, who denies plaintiff’s allegations, and avers that plaintiff’s negligence caused his injury. Issues submitted :

(1) Was the plaintiff injured through the negligence of the defendant''1 Answer. “Yes.”

(2) Did the plaintiff by his negligence contribute to the. injury? Answer. “No.”

(o) Could defendant, notwithstanding the negligence of plaintiff, have prevented the injury by the exercise of ordinary care? Not answered.

Plaintiff introduced evidence tending to show that defendant negligently allowed its engine to stand on its side-track in a, town, and caused or allowed steam to escape, making it dangerous for citizens to pass and repass along an adjacent street with their teams and vehicles. The defendant introduced evidence tending to show' plaintiff’s negligence in that he had just recently driven by, when his horses became excited and shied the standing engine, and that he soon returned by the same standing engine along the; street, and was not holding his reins, or was holding them so loosely that he could not control his horses, and that for that reason the horses dashed on to the street curbing and injured the plaintiff. There was other conflicting evidence on the issues in tire case.

*34511 if Honor instructed the jury that if they ^answered the first issue, yes; and the second issue, no; they need not consider, nor answer the third issue. The defendant assigned the following as errors, as well as others:

5. That the Court m*od in refusing to give the fourth instruction asked by defendant which is as follows: “That if at the tiihe the wagon and horses were about to pass the engine, the plaintiff was not holdiyig the reins of the horses in his hands, or if he was holding them so loosely that he could not control the horses in case of sudden fright, then the plaintiff is guilty of contributory negligence, and the jury must answer the second issue, “Yes.”

6. That the- Court erred in refusing to give the 5th instruction asked hv defendant, which is as follows: “That if the plaintiff knew or had reason to believe that the horses were afraid or shy of -the engine, then it was the duty of the plaintiff, in approaching and passing and repassing the engine, to have and kept tight hold of the reins so that he could control his horses in case they Avere frightened, and if lie failed to do so, then the plaintiff Avas guilty of contributory negligence, and the jury must ansAver the second issue, Yes.”

We think these prayers should have been, given, and that it Avas error to refuse to give them. They are distinct and without any confusing matter, and specially directed to the second issue, on which there Avas conflicting evidence. They present the defendant’s contention on that issue.

The plaintiff insists, however, that these prayers ivere substantially given in another part of the charge, to-Avit: “If the jury believe from a preponderance of the evidence that the plaintiff Avas driving his horses in a careless manner, either not holding the reins in his hands or holding them so loosely that lie could not control the horses, and not acting in the management of the horses in the manner that a man of *346ordinary care', skill and prudence would have done, and that this was the proximr.de cause of the injury, then you should answer the second issue, Yes.”

If it be conceded that this part of the charge does in substance give the defendant’s prayer, it is seen that it gives toe-much by adding to the prayer, “and that this was the proximate cause of the injury.” The prayer is confined to the second issue, and his Honor was charging a.s to the second issue when he submitted to the jury matter (proximate cause in this case) which can not be considered by the jury on the second issue. Proximate cause, when the evidence is conflicting, is a question for the jury under proper instruction, but not to be considered by them until they find that the plaintiff was guilty of contributory negligencej for if they answer the first issue yes, and the second issue no, then proximity of cause does not arise-, as the plaintiff is entitled to his judgment. If the first and second issues are answered yes, then the inquiry is raised whether the causes were concurrent, and, if not, which ivas proximate, and, as we have said, this will be determined by an answer to the third issue without allowing it any influence on the second issue.

It may ho that this last sentence in the charge had no influence with the jury. The trouble is that no one can tell whether it did or not. It is enough for the Court- to know that they wore allowed to do so, if they were so inclined. The jury may have reasoned that if the plaintiff was negligent we think the defendant’s negligence was the proximate cause of the injury, and being allowed to consider that matter on the second issue by his Honor we will shorten up the matter by answering the second issue no, and that makes it unnecessary to answer the third issue yes, and we can do> this as the result to the defendant is the same either way. This shows the danger, and how injustice may follow a mistake in the *347charge. Litigants have the right to have their contentions upon the evidence presented to' the jury in a, plain and correct manner, and the law arising thereon declared and explained by the Court. It is not proper for the jury to be left to reason out the better plan to obtain the result and legal consequences of their findings.

As wo are compelled for this error to.grant a new trial, it is needless to pass upon the numerous other exceptions, as they may not be presented again.

Error.

Dotjguas, J’., dissents arguendo.