(Henry v. Rich, 64 N.C. 379; Miller v. Miller, 89 N.C. 209; Swann v.Waddell, 91 N.C. 108; Wright v. Cain, 93 N.C. 296; Willis v. Branch,94 N.C. 142; Patton v. R. R., 96 N.C. 455; Smith v. McGregor, 96 N.C. 101;Morrison v. Watson, 95 N.C. 479; Crutchfield v. R. R., 78 N.C. 300;Johnson v. R. R., 81 N.C. 453; Pleasants v. R. R., 95 N.C. 195;Bank v. Alexander, 84 N.C. 30; Mitchell v. Brown, 88 N.C. 156; Hilliardv. Outlaw, 92 N.C. 266; Turrentine v. R. R., 92 N.C. 638; cited and approved.)
(Cowles v. R. R., 84 N.C. 311; cited in the dissenting opinion.) The following is the single paragraph of the complaint that gives rise to the issues of fact and law that arise in this case.
"3. That on or about 5 May, 1883, one Daniel Donavin, the intestate of the plaintiff, was employed by, and in the service of, the defendant company, as a laborer and watchman at the Swannanoa Tunnel on said railroad, in connection with its business of operating said railroad; that while he was so employed, and duly engaged about his business and service as such laborer and watchman so in the service and employ of the defendant company, the defendant company, unskillfully, carelessly, negligently and recklessly, so managed, moved and ran one of its engines, as to strike and run said engine against, upon and over the body of the intestate, and thus instantly to kill him, the said intestate; and that the plaintiff, by reason of such killing of his intestate, has become entitled to recover from the defendant company thirty thousand dollars."
The material parts of the answer are as follows:
"3. Defendant admits that Donavin was a watchman in its employment at Swannanoa Tunnell. Defendant denies the rest of allegation No. 3.
Defendant for a further defense says:
1. That it is informed and believes, that the deceased came to his death by his own negligence, in not getting out of the way of an engine, and by not being in his proper place when killed; or, *Page 72
(68) 2. That if he was killed through negligence at all, it was by the negligence of the engineer running the engine, who was a fellow-servant of the deceased; or,
3. That it was from some unknown cause or accident, for which the defendant is not liable."
At the trial the court submitted issues to the jury, whereof the following are copies, to which they responded as stated at the end of each:
1. Was the plaintiff's intestate injured by the unskillful, careless and negligent management of one of the defendant's engines, by the defendant? Answer: Yes.
2. Did plaintiff's intestate contribute to his own injury by his negligence? Answer: No.
3. Was the death of plaintiff's intestate caused by the negligence of Jack Edwards, an engineer and fellow-servant of plaintiff's intestate? Answer: Yes.
4. Did the defendant company retain the said Edwards in its service after the defendant company had knowledge, or by reasonable diligence might have ascertained, that said Edwards was incompetent, inefficient or reckless in running his engine? Answer: Yes.
5. Did the plaintiff's intestate know that said Jack Edwards was incompetent, inefficient or careless in running an engine, and with such knowledge remain in the service of the defendant till he was killed? Answer: Yes.
6. What is plaintiff's damage? Answer: Nine thousand five hundred dollars."
The court instructed the jury on the law and testimony bearing upon each of said issues.
(69) The plaintiff did not except, before or after verdict, to the instructions given or instructions refused. The plaintiff declined after verdict to move for a new trial. After the rendition of the verdict, the plaintiff moved the court for judgment upon the findings of the jury, on the first, second and sixth issues especially, and upon the whole verdict, in favor of the plaintiff for the sum of nine thousand five hundred dollars, and the costs of the action.
In the instructions given by the court bearing upon the second issue, and when the attention of the jury was directed to said issue, the court recapitulated all of the testimony offered by the parties, to show that plaintiff's intestate either did or did not contribute by his own negligence to cause the injury; but no reference was made by the court to the testimony as bearing upon this question, whether the plaintiff's intestate knew that Edwards was a reckless engineer, and remained in the service of the defendant company after he had such knowledge. *Page 73
In the instructions given to the jury bearing upon the fifth issue, however, the court stated to the jury, as counsel on both sides had stated in the argument, that the only testimony bearing upon that issue, was the testimony of the wife of plaintiff's intestate, as to what he said to her about Jack Edwards.
The defendant's counsel contended that there was no conflict between the findings on the second and fifth issues, and if there was any such conflict, the findings on the fifth issue, being a special finding, would control under section 410 of The Code.
The court refused the motion for judgment by plaintiff, and rendered judgment for defendant for the costs. The plaintiff excepted to said judgment and to the refusal of his motion for judgment, and appealed. It is true, as contended by the counsel of the appellant on the argument here, that the pleadings did not raise the fourth and fifth issues submitted to the jury in this case. It was therefore irregular to submit them, but it does not appear in the record that the appellant objected to them at the trial, or at all, in the court below, nor is error assigned as to them, nor can error in such respect be assigned in this Court, as has been decided in many cases.
The verdict, in response to these issues, must be accepted and acted upon, for any proper purpose in connection with the judgment given, or that ought to have been given by the court. Improper issues should be objected to in apt time, and if it should turn out that submitting them resulted in prejudice to the party complaining, this would be ground for a new trial. Issues arise upon the pleadings, and the court has not authority to submit others that do not so arise in its discretion. It is a mistaken notion that seems to be entertained by some of the profession, that the statute confers such power. Generally, however, when issues of fact, not raised by the pleadings, are submitted to the jury without objection, the presumption is, that they were submitted by consent of parties. Henry v. Rich, 64 N.C. 379;Miller v. Miller, 89 N.C. 209; Swann v. Waddell, 91 N.C. 108;Wright v. Cain, 93 N.C. 296; Willis v. Branch, 94 N.C. 142; Patton v.R. R., 96 N.C. 455; Smith v. McGregor, 96 N.C. 101.
The counsel for the appellee conceding that these issues were not raised by the pleadings, insisted that the statute (The Code, sec. 409), authorized the court, in its discretion, to submit them, and that, *Page 74 (71) although the finding of facts in response to the fifth issue is inconsistent with the general verdict in response to the second issue, the former must prevail, as provided by the statute (The Code, sec. 410), and therefore, the court properly gave judgment for the defendant.
This argument, it seems to us, is based upon a misapprehension of the nature, extent and effect of the findings of the jury in response to the several issues submitted, and particularly the second and fifth.
The statute (The Code, sec. 408), prescribes that, "a general verdict is that by which the jury pronounce generally upon all or any of the issues, either in favor of the plaintiff or defendant. A special verdict is that by which the jury find the facts only, leaving the judgment to the court." This implies that the verdict is general, when the jury, under appropriate instructions from the court as to the law applicable, simply respond affirmatively or negatively to the issues submitted — that it is special when it finds and facts in evidence, pertinent to, and bearing upon the issues submitted — when it states the facts, and leaves the court to apply the law pertinent and arising upon them. Morrison v. Watson,95 N.C. 479.
Ordinarily, the verdict of the jury is general, upon the issues submitted to them, but this is not necessarily so. The statute (The Code, sec. 409), prescribes that, "in every action for the recovery of money only, or specific real property, the jury in their discretion, may render a general or special verdict. In all other cases, the court may direct the jury to find a special verdict in writing, upon all or any of the issues; and in all cases, may instruct them, if they render a general verdict, tofind upon particular questions of fact, to be stated in writing, and may direct a written finding thereon. The special verdict or finding shall be filed with the clerk, and entered upon the minutes."
(72) It thus appears that in certain specified classes of cases, the jury may, in their discretion, render a special verdict. In all other cases the court may direct them to find a special verdict in writing upon all or any one or more of the issues; and it may instruct them if they render a general verdict, "to find upon particular questions of fact, to be stated in writing, and may direct a written finding thereon." The purpose of this provision is, to settle some important, leading question of fact, arising in the case, that is not made an issuable fact in the pleadings, but is one which the court deems material to a just determination of the case. In such case, the fact is found, and the court will determine its legal bearing and effect.
In the present case six issues were submitted to the jury. Their verdict upon each was general — a simple affirmative or negative response. The jury did not purport to render, nor did they in effect render a *Page 75 special verdict. Nor did the court instruct them to find a special verdict in writing, upon all or any of the issues; nor did it instruct them to "find upon particular questions of fact," stated in writing; nor did they make such findings.
All the issues submitted are supposed to have arisen upon the pleadings, and the verdict as to each is general, and must be so accepted by the court.
The statute (The Code, sec. 410), which provides that, "where a special finding of facts shall be inconsistent with the general verdict, the former shall control the latter, and the court shall give judgment accordingly," does not apply, because, as we have seen, there is no special finding upon a question, or questions of fact, as contemplated by it. The findings are all upon issues, and not questions, of fact.
If the court intended, as allowed by the statute, to instruct the jury to find upon "particular questions of fact," embraced by the third, fourth, and fifth issues, it should have stated the questions in writing, and the jury should have found the facts — many or few — as in case of a special verdict, so that the court could have determined (73) their legal effect and application, and moreover, so that, if error had been assigned in such respect, this Court could, upon appeal, have corrected any error that might have appeared.
Then, treating the verdict as to all the issues as general, did it warrant the judgment the court gave in favor of the defendant? We think it did not. Manifestly, the findings upon the first, second and sixth issues, without regard to the findings upon the other issues, entitled the plaintiff to judgment. It appears from these, that the defendant, carelessly, negligently, and tortiously injured the intestate of the plaintiff, as alleged, and that the intestate did not contribute to his own injury by his negligence, and the damages are ascertained.
But the findings upon the third, fourth, and fifth issues, are inconsistent with the findings just referred to, and thus the verdict upon all the issues, as a whole, is rendered not only inconsistent and contradictory, but unintelligible, and no judgment ought to be rendered upon it.
It is first found broadly and without qualification, that there was no contributory negligence on the part of the intestate of the plaintiff, and in response to the fifth issue, in legal effect, that there was such negligence. For if the intestate and engine-man were fellow-servants, as the jury found they were, and the latter was negligent and unfit for the common service, and dangerous in doing such service to his fellow-servants, and the intestate well and clearly knew these facts, and with such knowledge continued in the service of the defendant while the engine-man did likewise, he was thus negligent himself, and when he *Page 76 encountered the injury complained of, occasioned by the negligence of the engine-man, nothing else appearing, by such negligence on his part, he contributed to his own injury. Crutchfield v. R. R., 78 N.C. 300; Johnson v. R. R., 81 N.C. 453; Pleasants v. R. R., 95 N.C. (74) 195; Wood on Master and Servant, sections 385, 422, 423; 3 Wood Railway Law, secs. 394, 396; Whitaker's Smith on Neg., note on p. 397.
The fifth issue, and the finding of the jury upon it, is indefinite and unsatisfactory as an ascertainment of contributory negligence. At what time the intestate first knew of the incompetency and dangerous carelessness of the engine-man — the extent of his knowledge in these respects, and how long he had such knowledge before he suffered the injury complained of, do not appear. And the evidence upon which this finding is based, is quite as indefinite and unsatisfactory. Nevertheless, as the issue and the finding of the jury upon it were treated as sufficient, and there was no objection, the verdict must be deemed a finding that there was contributory negligence. So that, there are two contradictory findings. Which is the true one? Which shall the Court accept as true? Why shall it accept one and not the other? Such findings leave the issues of fact undetermined, and it is not the province of the Court, unless by consent, to determine them. The material facts are contradictory, and no judgment can be rendered. In such a case, the Court will direct a new trial. Bank v. Alexander, 84 N.C. 30;Mitchell v. Brown, 88 N.C. 156; Hilliard v. Outlaw, 92 N.C. 266;Turrentine v. R. R., ibid., 638; Morrison v. Watson, supra.
The learned counsel for the appellee insisted on the argument, that the facts ascertained by the verdict upon the fifth issue, did not, in legal effect, constitute contributory negligence, but was in effect, a finding that the intestate of the plaintiff, "agreed with the defendant company to risk the consequences of this dangerous contact and association" with the engine-man.
We cannot accept this view as correct. The law implies that the servant agrees to accept the ordinary risks incident to the business or service which he engages to do, but it does not imply that he (75) shall or will take upon himself extraordinary hazard, and especially such danger as the employer is bound to prevent and avert by the exercise of reasonable diligence on his part. Generally and ordinarily, the master and servant, in the contract of employment between them, do not contemplate extra hazards and unusual dangers arising in the course of the service to be done, and hence the law does notimply, in the absence of express stipulation to that effect, that the contract embraced such hazards. So far as appears, the contract of employment between the intestate of the plaintiff and the defendant was *Page 77 the ordinary one in such cases. The parties did not contemplate extra and unusual hazards, nor such dangers arising from the rash and dangerous acts of the unfit engine-man, nor does the contract embrace them by implication.
The most that can be said in this respect is, that the intestate, by remaining in the defendant's service after he had certain knowledge of the unfitness of his fellow-servant engine-man — the defendant having the like knowledge — assumed the extra hazard as to his fellow-servant, and thereby waived his right to redress against the defendant in case of injury arising to him from that servant's reckless act. But by thus remaining in the defendant's service, he was negligent as to his own safety, and by such negligence contributed to his own injury, in the absence of anything to the contrary, just as certainly as if he had used, in the course of his employment, a defective and dangerous locomotive, or other defective implement, knowing the same to be dangerous and had suffered injury from the same, by reason of such defects.
It was the intestate's duty to avoid such hazard; he was negligent in failing to do so, and thus unfortunately contributed to the loss of his life.
The verdict and judgment must be set aside, and a new trial had according to law.
To that end, let this opinion be certified to the Superior Court. (76) It is so ordered.
DAVIS, J. I concur in the opinion granting a new trial.