Wyatt v. Queen City Coach Co.

ERviN, J.

The plaintiffs assign as error the following from the charge : “Now, if you are satisfied by the greater weight of the evidence that the defendant was negligent in operating the bus it would be necessary for you to go further and be satisfied beyond a reasonable doubt *342 that the negligent conduct of the defendant was the proximate cause of the damage or injury.”

In ordinary civil actions, the verdict should be based on the preponderance of the evidence.

Wilson v. Casualty Co., 210 N. C., 585 , 188 S. E., 102 ;

Ellett v. Ellett, 157 N. C., 161 , 72 S. E., 861 , 39 L. R. A. (N. S.), 1135, Ann. Cas. 1913 B, 1215. By a preponderance of the evidence is meant simply the evidence which is of greater weight than that offered in opposition to it.

Supply Co. v. Conoly, 204 N. C., 677 , 169 S. E., 415 ; 32 C. J. S., Evidence, section 1021. Hence, it appears that the instruction set out above was erroneous in that it imposed upon the plaintiffs on the issues relating to the actionable negligence of the defendant a greater degree of proof than that required by law.

Williams v. Building & Loan Association, 207 N. C., 362 , 177 S. E., 176 ; S.

v. Swink, ante, 123, 47 S. E. (2d), 852 .

Before giving this erroneous instruction, the court clearly charged the jury in several instances that the plaintiffs had the burden of establishing the actionable negligence of the defendant by the greater weight of the evidence. After the jury had been out a short time, the court recalled the jury and withdrew and corrected the erroneous instruction in these words: “In trying criminal cases, Gentlemen, the burden is on the State to satisfy the jury beyond a reasonable doubt before they convict the defendant. In this Court here cases of this kind where the burden is on the plaintiff or the defendant, it is upon him to satisfy you by the greater weight of the evidence. The burden is on the plaintiff to satisfy you by the greater weight of the evidence on the first and third issues in each case before you would answer in the plaintiffs’ favor. The burden is on the defendant on the second issue in each case to satisfy you by the greater weight of the evidence before you would answer that issue in its favor. I inadvertently used the words ‘beyond a reasonable doubt’ when I meant to say ‘by the greater weight of the evidence,’ so if anywhere in my charge I said, ‘beyond a reasonable doubt’ it was an inadvertence, I meant to sav ‘by the greater weight of the evidence.’ ”

It is plain that this prompt and explicit withdrawal and correction of the erroneous instruction rendered its original giving harmless error.

Bailey v. Hayman, 222 N. C., 58 , 22 S. E. (2d), 6 ;

Jones v. R. R., 194 N. C., 227 , 139 S. E., 242 .

We have made a painstaking examination of all of the other assignments of error of the plaintiffs, and have reached the conclusion that none of them can be sustained. The court below delivered a comprehensive charge to the jury. It covers thirty-one pages of the record. When the extracts from the charge challenged by the plaintiffs are placed in their context and the instructions to the jury are read as a whole, it becomes manifest that the trial court performed its statutory duty to “state in a *343 plain and correct manner tbe evidence given in the case and declare and explain the law arising thereon.” G. S., 1-180;

Lewis v. Watson, ante, 20, 47 S. E. (2d), 484 .

When all is said, the trial in the court below resolved itself into a legal battle over sharply contested issues of fact. The jury answered the issues relating to the actionable negligence of the defendant adverse to the plaintiffs under a charge free from prejudicial error. Hence, the trial of these actions must be upheld.

No error.