#### ALFONSO OWENS v. JESSE KELLY.

(Filed 20 October, 1954.)

1. Damages § la—

Plaintiff is entitled to recover tor negligent personal injury the present worth of all damages *sustained in con*sequence *of*defendant’s tort, embracing indemnity for loss of time, or loss from inability to perform ordinary labor, or capacity to earn money, which are the immediate and necessary consequences of his injury.

*2.*Damages § 11—

In actions to recover damages for personal injury, wide latitude is allowed in the introduction of evidence to aid in determining the extent of the damages.

3. Same—

In an action to recover damages for personal injury negligently inflicted, the age and occupation of plaintiff, the nature and extent of his employment, the amount of his income at the time, from either wages or salary, are competent to be considered by the jury on the issue of damages.

4. Same—

Evidence of plaintiff’s wages, prior and subsequent to his injury, should ,be considered by the jury only for the purpose of estimating his loss of earning capacity in comparison with what he earned previous to the injury, and should be considered on the question *of*his impaired capacity to earn money rather than the wages he actually received.

5. Same: Husband and Wife § 0—

Where plaintiff and his wife were working as a team prior to the injury, but the wife is unable to work thereafter, evidence of their joint earnings is competent, but the jury, in considering evidence of the husband’s income prior to the injury, should not augment it by the amount the wife was earning, since her earnings are her sole and separate property. G.S. 52-10.

6. Evidence § 7a: Appeal and Error § 39h—

The burden of proof is a substantial right, and erroneous and conflicting instructions thereon ordinarily constitute prejudicial error.

7. Trial § 31d: Appeal and Error § 391i—

An instruction to the effect that plaintiff had the burden of proving defendant’s negligence by the greater weight of the evidence in order to make out a *prima facie*case, and that on a *prima facie*case the jury could answer the first issue “Yes,” must be held for prejudicial error.

*7718. Negligence § 17—

In an action to recover for negligent injury, the burden of proof is upon plaintiff to satisfy the jury by the greater weight of the evidence that the defendant was guilty of actionable negligence.

9. Negligence § 20—

The court charged .the jury to the effect that the burden was on defendant to satisfy the jury by the greater weight of the evidence that defendant was guilty of contributory negligence. The court then corrected the error, and charged that the burden was upon defendant to satisfy the jury that plaintiff was guilty of contributory negligence. Thereafter the court again charged that the burden was upon defendant to prove that defendant was negligent. *Held:*The charge was prejudicial and entitles defendant to a new trial.

10. Negligence § 17—

The burden of proof upon the issue of contributory negligence is upon the defendant.

11. Negligence § 11—

Plaintiff’s contributory negligence, to bar recovery, need not be the sole proximate cause of the injury, but it suffices for this purpose if it contributes to the injury as a proximate cause, or one of them.

12. Appeal and Error § 39f—

Conflicting instructions upon a material aspect of the case must be held for prejudicial error, since the jury are not supposed to be able to determine when the judge states the law correctly and when incorrectly.

Appeal by defendant from *Martin, Special Judge,*June Mixed *“A”*Term 1954 of BtjNcombe.

Action to recover damages for personal injuries allegedly caused by tbe actionable negligence of tbe defendant in tbe operation of an automobile.

Tbe jury answered tbe issue of negligence Yes, tbe issue of contributory negligence No, and tbe issue of damages $4,500.00. Judgment was entered in accord witb tbe verdict.

Defendant appeals assigning error.

*Uzzell & DuMont for Plaintiff, Appellee.*

*Meehins, Packer <& Roberts for Defendant, Appellant.*

Paekek, J.

Tbe defendant contends by bis assignments of error brought forward and discussed in bis brief tbat tbe court erred in tbe admission of evidence, and in charging tbe jury.

Tbe plaintiff testified in substance as follows: Tbat prior to bis injuries received in tbe automobile collision between defendant and himself, be and bis wife worked for Mr. Cbapuisat. Tbat be worked as cook, chauffeur, yard work, bouse work and those sort of things. Tbat when *772be returned to work after tbe collision, be worked for Mr. Obapuisat for a month. Then be quit, because be was not able to carry on bis work by reason of bis back injury. His wife stopped at tbe same time; they customarily worked at tbe same place, and have for a number of years. Then be and bis wife went to work for Mr. and Mrs. T. N. Ward. After working there around six months, bis wife got sick. He bad to change jobs after that. He then went to work for Mr. Buchanan as a cook. He quit that work after eight months, as be was not physically able to do tbe work. He then went to work for Judge Junius G-. Adams. On cross-examination be testified bis wife was sick and couldn’t work, and be bad to make what be could working without bis wife working with him. Tbe plaintiff did not testify, either on direct or cross-examination, as to tbe amount of wages paid to him or bis wife, or to them as a team- — not a word as to bis earnings.

Defendant’s wife on direct and cross-examination made no mention of any amount received by her or her husband, or both, for working. On re-direct examination she testified in substance: We (meaning plaintiff and herself) worked together at Mr. Obapuisat’s. He did the biggest portion of tbe work. She looked after tbe baby, and helped him with tbe bouse work when she could. He cooked, did tbe heavy cleaning, and drove and looked after tbe yard when be bad to. She was then asked this question : “What amount of money did Mr. Obapuisat pay for tbe services ?” Objection by defendant, sustained, exception by plaintiff. After argument by plaintiff’s counsel the court reversed its ruling, overruled tbe defendant’s objection, and tbe defendant excepted. The question was not answered. Plaintiff’s counsel then asked this question: “How much did you make at Mr. Cbapuisat’s ?” A. “$300.00 a month.” Tbe defendant made a motion to strike, which the court denied, and tbe defendant excepted. Plaintiff’s counsel then asked this question: “How much did you make at Mrs. Ward’s?” Objection by defendant, overruled, and exception by defendant. A. “$200.00.” On re-cross-examination she said in substance : He made $55.00 a week working at Buchanan’s Bestaurant— be made more there than both of us working at Ward’s and Obapuisat’s.

After tbe defendant rested its case, tbe plaintiff was recalled to tbe stand. He testified that be made $30.00 a week working for Judge Adams. On cross-examination be said he and bis wife were working for *$300.00*a month for Mr. Obapuisat.

What appears above is a summary of all tbe evidence in tbe Becord as to plaintiff’s earnings. Neither Mr. nor Mrs. Obapuisat, nor Mr. nor Mrs. Ward were called as witnesses.

In an action to recover damages for personal injury resulting from defendant’s negligence, tbe plaintiff is entitled to recover tbe present worth of all damages sustained in consequence of defendant’s tort. These *773are understood to embrace indemnity for loss of time, or loss from inability to perform ordinary labor, or capacity to earn, money, which, are the immediate and necessary consequences of bis injury. The age and occupation of the plaintiff, the nature and extent of his employment, the value of his services, and the amount of his income at the time, whether from fixed wages or salary, are matters properly to be considered by the jury. We have not stated the full rule of damages in such cases, but only so much of it as is pertinent to the question of evidence before us. *Mintz v. R. R.,*233 N.C. 607, 65 S.E. 2d 120; *Ledford v. Lumber Co.,*183 N.C. 614, 112 S.E. 421; *Rushing v. R. R.,*149 N.C. 158, 62 S.E. 890.

“In personal injury actions great latitude is allowed in the introduction of evidence to aid in determining the extent of the damages; and as a broad general rule any evidence which tends to establish the nature, character, and extent of injuries which are the natural and proximate consequences of defendant’s acts is admissible in such actions, if otherwise competent.” 25 C.J.S., Damages, §146, p. 794 (quoted verbatim in *Mullinax v. A. & P. Tea Co.,*221 S.C. 433, 70 S.E. 2d 911).

Plaintiff was entitled to show the wages Mr. Ohapuisat was paying him at the time of his injury, and what wages the Wards paid him for six months shortly after his injury. *Fox v. Army Store,*216 N.C. 468, 5 S.E. 2d 436; *Rushing v. R. R., supra; Wallace v. R. R.,*104 N.C. 442, 10 S.E. 552; *Stynes v. Boston Elevated Ry. Co.,*206 Mass. 75, 91 N.E. 998, 30 L.R.A. (N.S.) 737; 15 Am. Jur., Damages, p. 504; 25 C.J.S., Damages, Sec. 86. However, while this evidence is competent for the jury’s consideration, it would seem that the jury should estimate the damages on the injured party’s ability to earn money rather than what he actually received, and the amount which plaintiff is capable of earning, and not that which he has actually earned since the injury, is to be taken for the purpose of comparison with his previous earnings as showing the diminution of earning capacity. 25 C.J.S., Damages, p. 620, and eases cited.

In an action for damages for wrongful death we have held that direct evidence of the earnings of the deceased is not essential. *Hicks v. Love,*201 N.C. 773, 161 S.E. 394.

G. S. N. G. 52-10 provides that the earnings of a married woman shall be her sole and separate property as fully as if she had remained unmarried.

In our opinion, the ruling of the court was correct in admitting this evidence for the consideration of the jury. However, while plaintiff and his wife were working as a team, his wages could not be augmented by what she was receiving, or entitled to receive, for her services. *Croom v. Lumber Co.,*182 N.C. 217, 108 S.E. 735.

The defendant’s assignment of error No. 9 is to the charge of the court on the first issue as to burden of proof. The first issue is as follows: *774“Was tbe plaintiff damaged by tbe negligence of tbe defendant, as alleged in tbe complaint?” After reading tbe issue to tbe jury, tbe court properly placed upon tbe plaintiff tbe burden of proof to satisfy tbe jury by tbe greater weight of tbe evidence that tbe injury complained of was caused by the negligence of tbe defendant. Then tbe court charged as follows: “Burden of proof is an expression that means tbe duty to establish tbe truth of tbe complaint of tbe person who has tbe burden of proof by tbe preponderance or greater weight of tbe evidence in order to make out a *prima facie*ease. A *prima facie*case means a case which tbe jury can consider, but, not necessarily must, but may, find in tbe person’s favor who seeks tbe affirmative of tbe issue, in this case on tbe first issue, tbe plaintiff.”

“Tbe rule as to tbe burden of proof is important and indispensable in tbe administration of justice. It constitutes a substantial right of tbe party upon whose adversary tbe burden rests; and therefore, it should be carefully guarded and rigidly enforced by tbe courts.” *Hosiery Co. v. Express Co.,*184 N.C. 478, 114 S.E. 823; *Hunt v. Eure,*189 N.C. 482, 127 S.E. 593; *Boone v. Collins,*202 N.C. 12, 161 S.E. 543. Error in respect thereof usually entitles the aggrieved party to a new trial. *Vance v. Guy,*224 N.C. 607, 31 S.E. 2d 766.

In *Vance v. Guy, supra,*tbe following instruction in tbe charge was held t'o be prejudicial error. Speaking to tbe burden of proof, “tbe court instructed tbe jury that tbe plaintiff bad tbe burden of the issue, which never shifted, but ‘when the actor has gone forward and made a *prima facie*case, tbe other party is compelled in turn to go forward or lose bis ease, and in this sense tbe burden shifts to him.’ ”

Tbe trial judge in effect instructed tbe jury that on tbe first issue tbe plaintiff bad the burden of proof by tbe greater weight of tbe evidence in order to make out a *prima facie*case, and that on a *prima facie*case tbe jury could answer tbe first issue Yes. It is elementary learning that tbe plaintiff has tbe burden of proof to satisfy tbe jury by tbe greater weight of tbe evidence that tbe defendant was guilty of actionable negligence as alleged to prevail; and if be does not carry such burden, be fails. Tbe inexactness of this instruction may well have been tbe decisive factor on tbe trial, as tbe contention of plaintiff that be was injured by tbe actionable negligence of tbe defendant was sharply contested. A *prima facie*case simply carries tbe case to tbe jury for determination and no more. *Vance v. Guy, supra; McDaniel v. R. R.,*190 N.C. 474, 130 S.E. 208; *Hunt v. Eure, supra.*

Tbe defendant’s assignments of error Nos. 11 and 12 are to the court’s instructions as to tbe second issue of contributory negligence of tbe plaintiff. Tbe court instructed tbe jury that tbe burden of proof is upon tbe defendant to satisfy tbe jury by tbe greater weight of tbe evidence that *775*the defendant*was negligent in one or more of these respects, and that bis, *the plaintiff’s*negligence *was a*proximate cause of plaintiff’s injuries. Counsel for defendant immediately called tbe court’s attention to tbe fact tbat tbe court bad “stated that tbe burden is upon tbe defendant to prove that tbe defendant was negligent.” Tbe court thanked defendant’s counsel, and instructed tbe jury tbat tbe burden of proof was upon tbe defendant,to satisfy tbe jury tbat tbe plaintiff was guilty of contributory negligence. Then immediately thereafter the court charged: “If you so find, tbat *the defendant was negligent,*and you find it by tbe greater weight of tbe evidence, burden being upon tbe defendant to so prove, it would be your duty to answer tbat issue” (tbe second issue) “Yes.” Tbe above is all tbe court charged as to burden of proof on tbe second issue. Tbe court then proceeded to tbe issue of damages.

It is settled law tbat tbe burden of proof of contributory negligence under the second issue is upon tbe defendant. *James v. R. R.,*233 N.C. 591, 65 S.E. 2d 214.

Plaintiff’s contributory negligence, *to*bar recovery, need not be tbe sole proximate cause of tbe injury, as this would exclude any idea of negligence on defendant’s part. *Godwin v. R. R.,*220 N.C. 281, 17 S.E. 2d 137. It suffices, if it contributes to tbe injury as a proximate cause, or one of them. *McKinnon v. Motor Lines,*228 N.C. 132, 44 S.E. 2d 735.

“Tbe very term ‘contributory negligence’ *ex vi termini*implies, or presupposes negligence on the part of tbe defendant.” *Scenic Stages v. Lowther,*233 N.C. 555, 64 S.E. 2d 846.

Three times the court instructed the jury on the burden of proof as to the second issue. The first time incorrectly, the second time correctly, and the third and last time incorrectly. “the members of the jury are not supposed to be able to determine when the judge states the law correctly and when incorrectly.” *Templeton v. Kelley,*217 N.C. 164, 7 S.E. 2d 380; *Hartley v. Smith,*239 N.C. 170, 79 S.E. 2d 767.

The conflicting instructions were material and prejudicial, since tbe jury may have acted upon tbe incorrect instruction. *S. v. Brady,*238 N.C. 404, 78 S.E. 2d 126.

Another trial seems necessary. It is so ordered.

New trial.