Gray v. Little

Faircloth, C. J.

The defendant is a practicing physician and surgeon, and was called to attend the plaintiff’s *387 wife in her child-bed sickness. The evidence is not in the record in this Oonrt, and there is no exception to anything at the trial, except that part of the charge copied below.

The allegation is that the defendant, by his careless, negligent and unskillful conduct, caused great pain and injury to the plaintiff’s intestate (wife), and that by inhuman and cruel treatment by the defendant, the child’s death resulted after delivery, and the death of the wife was hastened and accelerated. The answer denies these allegations. The second issue is, “Was the death of the plaintiff’s intestate caused by the defendant’s carelessness and inhuman and •cruel treatment as alleged ?” The jury answered, “Yes, accelerated.” The third issue is, “What damage, if any, is plaintiff entitled to recover ?” Answer. “Nominal damages — 5 •cents.” •>.

.His Honor in charging the jury substantially followed the «charge approved in Benton v. Railroad, 122 N. C., 1007 , and in addition thereto instructed the jury in these words:

“But in considering the second issue as to' the cause of the death of the plaintiff’s intestate,if von find that the death of the intestate was only hastened or accelerated by the acts or omissions of the defendant as alleged, then you are instructed that, in answering the third issue as to damages, you can not award the plaintiff any more than nominal damage, that is, such small sum as for instance 5 cents, or other small sum, because in such state of the case if the death of the intestate was only hastened or accelerated by the defendant, you could only respond to this issue in nominal damages.” (Exception.) The error in that part of the charge lies in considering the act expediting death, as a mere technical injury. That is not the language of the law, nor of the text-books on criminal matters. There are instances in the commdn law reports where the accelerator paid the severest penalty known to the *388 law. We know of no decision of a final appellate court in this country declaring otherwise.

We will only refer to a few of our own cases which are in point on this question —Lewis v. City of Raleigh, 77 N. C., 229 ;

Coley v. Statesville, 121 N. C., 301 , and others cited in No. 5024, Womack’s Digest. It follows that the prayer referred to in the defendant’s second exception w’as proper for the jury.

Considering the verdict on the second issue, and such evidence as authorized the jury to make that response, it seems fortunate for the defendant that he is not on trial for a higher criminal offense, as well as to answer in an action for damages.

There must be a new trial as to damages only, on the third issue.

Error.