#### R. L. YOUNG and MOLLIE YOUNG, His Wife, v. BOARD OF COMMISSIONERS OF YANCEY COUNTY et al.

(Filed 23 December, 1925.)

. Instructions — Conflicting in Material Parts — New Trial.

When a charge to tbe jury of tbe law arising from tbe evidence upon tbe trial is conflicting substantially, and upon material parts, tbe jury will not be presumed to have perceived tbe error and correctly have applied tbe law, and a new trial will be granted on appeal.

Appeal by plaintiff from Ragland, Special Judge, at March Term, 1925, of the Superior Court of Yaetcey.

There were two issues :

■1. Did tbe plaintiff, for a valuable consideration, agree witb tbe Board of Highway Commissioners of Yancey County to grant tbe right of way over which tbe road in question was built? Answer: Yes.

*8462. "What amount of damages, if any, is plaintiff entitled to recover? Answer: Not any. •

Charles Hutchins for plaintiff.

Watson, Hudgins, Watson & Fonts for defendant.

Adams, J.

It was alleged tbat tbe defendants bad entered upon tbe land of tbe plaintiffs and bad constructed a public road tbereon, making fills, embankments, and deep cuts, and damaging tbe adjacent property in several respects wbicb are particularly set out in tbe complaint. Tbe defendants admitted tbe plaintiffs’ title and tbe appropriation of tbeir property (record pp. 3, 19), and by way of a further answer alleged tbat tbe plaintiffs bad given and granted tbe right to enter upon tbeir lands and tbe right to construct tbe road in consideration of tbe advantages afforded by an improved highway and in consideration of tbe building by tbe defendants of a wall for tbe protection of tbe plaintiffs’ spring. This further answer was set up as an independent defense, and tbe trial judge correctly instructed tbe jury tbat tbe defendants bad tbe burden of establishing tbe alleged contract by tbe greater weight of tbe evidence; but be gave tbe additional instruction tbat tbe law required tbe plaintiffs to establish tbeir contention by tbe preponderance of tbe evidence, and if tbe jury should find by tbe greater weight of tbe evidence tbat tbe alleged agreement was not entered into and was not binding they should answer tbe first issue in tbe negative. It appears, then, tbat tbe judge, through an inadvertence no doubt, gave antagonistic instructions in reference to one legal proposition. In Edwards v. R. R., 132 N. C., 99, the Court said: “It is well settled that when there are conflicting instructions upon a material point a new trial must be granted, as tbe jury are not supposed to be able to determine when tbe judge states tbe law correctly and when incorrectly.” And in Williams v. Haid, 118 N. C., 481: “It does not help tbe case to say tbat, although a part of tbe charge is erroneous, there is another part of tbe charge on tbe same point which is correct,'and tbat as a whole there is no error because tbe jury would be presumed to have obeyed tbe correct portion. Tbat is to assume tbat tbe jury understands tbe law and is able to detect and discard tbe erroneous instruction, wbicb would not be a safe assumption.” Tillett v. R. R., 115 N. C., 663; Bragaw v. Supreme Lodge, 124 N. C., 154; Cresler v. Asheville, 134 N. C., 311; Jones v. Ins. Co., 151 N. C., 53; McWhirter v. McWhirter, 155 N. C., 145; Champion v. Darnel, 170 N. C., 331; Haggard v. Mitchell, 180 N. C., 255.

New trial.