#### B. F. WELLONS v. M. B. SHERRIN et al.

(Filed 30 April, 1941.)

1. Negligence § 20 — Whether particular conduct is at variance with conduct oí reasonably prudent man in similar circumstances is question for jury.

The court’s charge, after reciting plaintiff’s evidence, that if the -jury found those to be the facts by the greater weight of the evidence, and further found “that that was negligence,” is held not error as submitting a question of law to the jury, but the charge properly left it for the jury to determine whether upon the facts as contended for by plaintiff, defendants’ conduct constituted negligence, i.e., whether defendants had done or failed to do what a reasonably prudent man would have done in the circumstances of the case.

*4772. Negligence § 1—

Negligence is doing other than, or failing to do, what a reasonably prudent man, similarly situated, would have done.

3. Negligence § 20 — Charge, construed as a whole, held not prejudicial.

The court charged the jury that if they found by the greater weight of the evidence the facts and circumstances to be as contended for by plaintiff, and that the conduct of defendants in such circumstances constituted negligence, to answer the issue of negligence in the affirmative, but that “if you are not so satisfied about it” to answer the issue in the negative. Held: The quoted phrase, when taken in connection with other portions of the charge, merely instructed the jury, in effect, that the plaintiff was required to satisfy them of the correctness of his position by the greater weight of the evidence, and the use of the phrase, construing the charge as a whole, was not prejudicial to plaintiff.

4. Negligence § 4a—

This action was predicated upon alleged negligence of defendants, landlord and tenants, in maintaining an open pit on the land of one of the tenants to take care of the overflow from a septic tank on the leased premises, the expense of digging the pit and connecting it with the septic tank being prorated among defendants. There was no evidence that the landlord participated in the maintenance of the pit. Held: If the conduct of the tenants did not constitute negligence, the landlord cannot be guilty of negligence.

Appeal by plaintiff from Johnston, Special Judge, at Extra Civil Term, September, 1940, of MeckleNbubg.

Civil action to recover damages for death of plaintiff’s intestate, alleged to have been caused by tbe wrongful act, neglect, or default of tbe defendants.

Tbe defendant Sberrin leased a filling station and grill to bis co-defendants, tbe Sappenfields. Tbe septic tank on tbe premises became unsatisfactory, so tbe landlord and bis tenants agreed to prorate tbe expense and to dig a cinder pit six or nine feet deep some distance away on a lot belonging to tbe Sappenfields and to run an overflow pipe from tbe septic tank to tbe pit. Tbis was done. It is alleged tbat tbis pit was negligently left open, and on tbe afternoon of 16 February, 1939, plaintiff’s intestate, a child 4% years of age, fell into tbe pit and was drowned.

There is no evidence tbat tbe landlord participated in tbe maintenance of tbe pit at any time after its construction.

Two separate issues of liability were submitted to tbe jury, first, tbe liability of tbe tenants, and, second, tbe liability of tbe landlord.

After a recital of tbe plaintiff’s evidence, tbe trial court concluded bis charge on tbe first issue as follows: “Now if you find those to be tbe facts by tbe greater weight of tbe evidence (A) and you further find tbat tbat was negligence on the part of tbe defendants, tbe Sappenfields, *478and you further find that that negligence was the proximate cause of the death or injury to this child, you would answer the first issue ‘Yes.’ But if you do not find that to be true, or if you are not satisfied about' it, then you would answer that issue ‘No.’ ” (B) Exception.

The jury answered the first issue “No” and returned its verdict without answering the other issues.

Plaintiff appeals, assigning errors.

<Take F. Newell, B. F. Wellons, and John A. McRae for ‘plaintiff, appellant.

Hartsell & Uartsell for defendants, appellees.

Stacy, C. J.

The instruction which the plaintiff assigns as error was patterned after the language of the majority opinion when the ease was here on demurrer of the landlord at the Spring Term, 1940, reported in 217 N. C., 534, 8 S. E. (2d), 820. There it was said:

“If the defendant Sherrin was in fact at the time participating in the maintenance of the pit or hole located on the premises of the defendants Sappenfield, and the plaintiff offers evidence tending to support the other allegations, then it is for the jury to say whether, in the exercise of ordinary care, it was his duty to provide protection by fence or other devices and to give warning of the danger incident to the existence of the pit.”

The court was not submitting a question of law to the jury when he used the expression, “and you further find that that was negligence,” etc. Rather, he was leaving it for the jury to say whether the defendants, in the exercise of ordinary care, had done or failed to do what a reasonably prudent man would have done in the circumstances of the case. Negligence is doing other than, or failing to do, what a reasonably prudent man, similarly situated, would have done. Diamond v. Service Stores, 211 N. C., 632, 191 S. E., 358. The further expression, “or if you are not satisfied about it,” of which the plaintiff complains and cites Willis v. R. R., 122 N. C., 905, 29 S. E., 941, as authority for his position, only had the effect, when taken in connection with other portions of the charge, of saying to the jury that the plaintiff was required to satisfy them of the correctness of his position by the greater weight of the evidence. Speas v. Bank, 188 N. C., 524, 125 S. E., 398. It is not perceived wherein the charge was prejudicial to the plaintiff. Williams v. Woodward, 218 N. C., 305, 10 S. E. (2d), 913.

There is no evidence that the landlord participated in the maintenance of the pit. And, of course, if his tenants are not liable, he is not.

The verdict and judgment are supported by the record.

No error.