#### CURTIS v. SOUTHERN RAILWAY COMPANY.

(Filed June 19, 1902.)

1. NEGLIGENCE — Contributory 'Negligence — Last Clear Chance— Issues — Evidence—Opinion on Evidence.

Where there are three issues submitted, one as to negligence of defendant, one as to contributory negligence of plaintiff, and one as to last clear chance, it is error tp charge that the third issue, notwithstanding the negligence of the plaintiff, is the main issue in the case, and the first issue should he answered like the third.

2. NEGLIGENCE — Last Clear Chance — Issues.

Where there are three issues submitted, one as to negligence of defendant, one as to contributory negligence of plaintiff, and one as to the last clear chance, it is error to charge that the third issue depends upon' and follows the finding upon the first issue.

ActioN by J. L. Curtis against tbe Southern Railway Company, beard by Judge M. H. Justice and a jury, at August Term, 1901, of tbe Superior Court of Bukee County. Erom a judgment for tbe plaintiff, tbe defendant appealed.

Avery & Avery, and J. T. Perkins, for tbe plaintiff.

Geo. F. Bason, for tbe defendant.

Douglas, J.

Tbis is an action for tbe recovery of damages for personal injuries, alleged to bave been caused by tbe negligence of tbe defendant. . There are twenty-two exceptions, but we think that tbe consideration of two only will be sufficient for tbe purposes of tbis opinion.

Tbe issues and answers thereto were as follows: “1. Was plaintiff injured by tbe negligence of defendant? Wes.’ 2. Did plaintiff, by bis own negligence, contribute to bis injury? ‘Yes.’ 3. Notwithstanding plaintiff’s negligence, could defendant, by exercising ordinary care, bave prevented *438the injury ? ‘Yes/ 4. What damage is plaintiff entitled to recover ? ‘$300.’ ”

The defendant excepts to the following portion of his Hon- or’s charge: “So far as I can see, the third issue, notwithstanding the negligence of the plaintiff, could the defendant, by ordinary care; have prevented the injury, is the main issue in this case, and the first issue will be answered as you answer the third issue.” We think this instruction was erroneous in a double aspect. In the first place, it seems to us a clear intimation of the opinion of the Court that the defendant was guilty of negligence, since, if the first issue were answered in the negative, the third issue would never be reached.. That would end the case. If the defendant is not primarily negligent, the issue of contributory negligence is immaterial, and the doctrine of the last clear chance is eliminated. It was, therefore, erroneous as a principle of law.

This Court has said in Cox v. Railroad, 123 N. C., 604, 610: “Had the question not been again presented by counsel, it would almost seem needless to repeat what we have so often said, that the burden of proving negligence rests upon the plaintiff, while the onus of showing contributory negligence rests upon the defendant. In both cases this must be shown by the greater weight of the evidence, and of this relative weight the jury alone can determine. A negative presumption necessarily accompanies the burden, and remains until the burden is lifted or shifted by direct admissions or a preponderance of proof. Each issue bears its own burden, and it rarely happens that the burden of all the issues rests upon the same party. In cases of negligence like the present, it changes with each successive step, it being necessary for the plaintiff to prove the negligence of the defendant; the defendant, the contributory negligence of the plaintiff.; and again, for the plaintiff to show the last clear chance of the defendant, if that issue becomes material. Each of these *439issues depends upon tbe one preceding. Tbe plaintiff must first prove tbat be was injured by tbe negligence of tbe defendant. If be fails to* prove it, tbat is an end of tbe case, and tbe defendant is not then required to prove contributory negligence.. Properly speaking, there is no contributory negligence unless there is negligence on tbe part of tbe defendant.

“This distinction is important as affecting tbe burden of proof and tbe consequent direction of a verdict. If the negligence by which tbe plaintiff is injured is entirely bis own, as in Mesic’s case, where, instead of the train running into tbe horse, tbe horse ran into tbe train, then there is no evidence to go to tbe jury on tbe first issue, and tbe question of contributory negligence becomes immaterial.”

It will thus be seen tbat the question of tbe last clear chance is in tbe nature of a relative or secondary issue. If it is found tbat tbe defendant has not been negligent, tbat ends tbe case in favor of tbe defendant, and no other issues are necessary or material. If it is found tbat the defendant’s negligence caused tbe injury, and tbat plaintiff was not guilty of contributory negligence, then tbe only material issue remaining is tbat of damages. If it is found tbat tbe negligence of tbe defendant caused tbe injury, and tbat tbe negligence of tbe plaintiff contributed thereto, then, and then only, tbe issue as to the last clear chance becomes material.

Considering tbe above as the three first issues, it is never proper for tbe Court to charge tbe jury tbat they must find tbe first and third issues the same way. The third issue should not be considered until after tbe first issue is found in tbe affirmative; and yet such a finding as to tbe first does not by any means presume an affirmative finding as to tbe third.

Tbe defendant further excepted to tbe following portion of bis Honor’s charge: “This is a question of negligence, and is a question of fact for you. Now take this testimony, *440and if tbe plaintiff bas satisfied yon tbat tbe railroad company failed to exercise due and ordinary care, as I have explained it to you, tben you will answer tbe first’ issue and third issue ‘Yes.’ ” In tbis there is error, not only because it again confuses tbe issues, but also because it makes the third issue, as to tbe last clear chance, depend upon tbe simple neg-* ligence of tbe defendant. Even if tbe defendant is negligent, it is not liable unless such negligence was tbe cause of tbe plaintiff’s injury. It is not liable, tben, if tbe plaintiff is guilty of contributory negligence, unless tbe last clear chance to avoid tbe injury rested with tbe defendant. Edwards v. Railroad, 129 N. C., 78.

Eor these reasons we think tbe defendant is entitled to- a new trial.

Among the defendant’s assignments of error is tbe follow-* ing: “To tbe giving of tbe instructions prayed for by plaintiff, as covered by defendant’s exceptions 14 to 18, inclusive.” We can not find any such exceptions in tbe record, and in fact it does not appear which, if any, of tbe nine instructions asked by tbe plaintiff were given by tbe Court. Therefore, we will not discuss the novel and difficult questions therein involved, and will only say tbat, as to the use of air-brakes and other safety appliances, we are not yet prepared to bold a railroad company to tbe same degree of responsibility to a trespasser as to a passenger or employee. What is its measure of duty under such circumstances must await determination until properly presented.

New Trial.