
    WILLIAM AVERA Jr., vs. WILLIAM SEXTON.
    What amounts to negligence is a question of law. And the plaintiff is entitled to special instructions upon certain facts presented by the testimony, or “upon the whole case,” if he choose to subject himself to the disadvantage of having all the conflicting'taken against him.
    It is error to refuse such special instructions, when called for, and to submit the matter to the jury, with general instructions merely.
    Appeal from the Superior Court of Law of Cumberland County, at the Special Term, February 1852, his Honor Judge Settle presiding.
    
      ■ This is an action on the case to recover damages from tiie defendant, for negligence in managing and steering his raft in the Cape Fear River, by which an unfinished raft of the plaintiff was broken from its fastenings, and the timber lost.
    The plaintiff called as a witness, James Colvill, who swore, that he was employed by the plaintiff to watch a raft of timber, which he was making in the river, and guard it from the dangers of a freshet. The witness stated, that the clamp or unfinished raft was tied to a tree on the shore by an inch rope. In consequence of a high freshet — a rise of twenty feet of water, which came very suddenly in the river, he went to the landing on the morning of the day the clamp was broken, and securely fastened the same by an inch rope to a tree higher up the bank. At a late hour of the day he went again to the river, and found the plaintiff’s timber gone, and saw upon the tree, where the rope had been tied, the mark made by the rope, as if it had been violently strained. The witness farther stated, that the clamp was in a cove, made by a bend in the river; was at a public rafting and landing place, a place where raftsmen coming over the falls, or rapids, were accustomed to stop for the purpose of discharging the extra hands, necessary to bring the raft over the falls. He further said, that there were twenty-four sticks of timber in the plaintiff’s clamp.
    The plaintiff next examined Kedar Kennedy, who swore, that he came over the falls on the day the plaintiff’s timber was lost, and tried to “take up” his raft at the “upper landing,” next to the falls — failing in this, he followed the current until he came within eighty or a hundred yards of the ‘‘cove,” when seeing a clamp or raft of timber at the place described by the first witness, he ordered his hands to “pull out,” and not to strike it. He then ran with the current about two miles, until he came into “ eddy water,” ' and took up his raft. He stated, that he could .see the. plaintiff’s raft at the distance of eighty yards, and could easily avail striking against it, after seeing it at that distance. He further stated, that the current of the river set in a direction off from the plaintiff’s timber, and was sufficiently strong to carry off a raft, if no effort had been made to draw it into the shore.
    Thomas Bolin was next introduced, who swore, that he was on the defendant’s raft the day that the plaintiff’s clamp was broken; said, that the clamp might have been seen at the distance of seventy-five yards, but was not seen at that . distance; that he was standing upon the raft near the front, not employed at the time; that most of the hands were working to get the raft in near the shore for the purpose of “ taking up that so soon as the alarm was given about the clamp ahead, the hands commenced working the fore-oar for the purpose of throwing the head of the raft out into the main stream,s© as not to “butt” the plaintiff’s timber; that the front of the raft being thrown suddenly out caused the stern to wheel in, which “ dragged’’ or “ rubbed” the plaintiffs timber, and caused the clamp to be broken, and the pieces scattered in the current. Witness further said, he thought all was not done that might have been done to prevent the injury to the plaintiff.
    The plaintiff gave evidence of the value of his timber and closed his case,
    The defendant, to support his plea of “ not guilty,” examined, first, James McAllister, who swore, that he had been many years acquainted with rafting and “ navigating” the falls; that on this occasion he went on the defendant’s raft at his request, and assisted the hands in going over the falls; that there were ten or twelve hands on the raft, more than the number usually employed in the highest fr.eshet; that they were safely over the falls, and drew in towards the shore, trying to take up; and were trying for a half a mile — »throwing out their ropes around trees and catching the limbs; that when the alarm was given about the timber ahead at the landing, the main force was applied to the fore oar to throw the head of the raft out into the stream and to avoid a collision with the plaintiffs clamp; th'at a part of the hands were also working at the “hind oar” to prevent its dragging or rubbing; but as soon as the front of the raft passed by the plaintiff’s without striking, an effort was made by the hands to throw out the stern towards the current, so as to prevent striking either with the side or end of the defendant’s raft, but they failed in this, and the clamp was broken loose by the hind end of the raft. He further swore, that the force of the hands was sufficient; that some of them were trained and experienced in the management of ralts, and that all was done that could be done, after seeing plaintiff’s timber, to prevent its loss. Says, that he was within fifty yards of the clamp, when he discovered it; that he might have passed by it safely had he seen it a distance of seventy-five yards, or even fifty yards: no hand is ever employed on the river merely as a “look out.” He further swore, that the force of the hands was properly directed; and that not only was the proper effort made, but, in his opinion, the whole management of the raft was skillfully conducted. He further swore, that he was looked up to as the manager of the defendant’s raft; that at the time of the “ alarm,” he ordered all hands to the fore oar, which he admitted to be wrong in ordering all hands. He further said, that negro Frank, an experienced hand, remained at his post at the hind oar, notwithstanding the order.
    Hngh McLean swore for the defendant. Was also upon the raft. Swore in all material points substantially as the witness McAllister. He said, that when the plaintiff’s clamp was discovered, he and several others were clinging to the limbs and bushes, trying to take up the raft of the defendant; and that as soon as the clamp was seen, they immediately made all the efforts in their power to prevent injury. He further swore, that there was no look out on the raft — that he never heard of a “look out” on the Cape Fear: that the plaintiff’s raft might have been seen by a look out.
    Julius McLean, witness for defendant, was also on the defendant’s raft. Swore in all material matters as the other witnesses for the defendant. He said, that Bolin, McAllister» McLean, defendant, and himself, were the only white persons present on the defendant’s raft.
    His Honor charged the jury, that the defendant, being in the prosecution of a lawful employment, was only bound to use ordinary care — such care as an ordinary prudent man would use in the management of his own affairs. And if, in this matter, he did not use such care, the plaintiff was entitled to the verdict.
    The plaintiff’s counsel then requested the Court to charge the jury, that if the defendant, when attempting to “ take up,” saw the raft of the plaintiff, or might by a careful look out have seen it, it was his duty in taking up to have taken effectual efforts to have prevented a collision,
    Ilis Honor would not so instruct the jury, but remarked, that the defendant was only bound to use ordinary care ; and what that was, he had already explained.
    The plaintiff’s counsel then prayed the Court to instruct the jury, that, upon the whole case, if they believed the testimony, there wras negligence on the part of the defendant; but the Court declined so to instruct the jury, and repeated the instructions as to ordinary care.
    Verdict for defendant, and plaintiff appealed.
    IF. Whisloio, for the plaintiff’.
    
      Strange, for the defendant.
   Pearson. J.

The plaintiff’s counsel prayed his Honor to instruct the jury, that, upon the whole case, if they believed the testimony, there was negligence on the part of the defendant. This instruction was refused; and for this the plaintiff excepts.

The terms used by the plaintiff are so general as to impose on him the disadvantage of having all the testimony, where it conflicts, taken against him. But even with this allowance, there was negligence on the part of the defendant.

The plaintiff’s unfinished raft’ was fastened at a usual landing place, where rafts were sometimes constructed, and descending rafts were frequently taken up. It could be seen by the hands on a descending raft at the distance of seventy-five or eighty yards; and they could without difficulty avoid a collision, if it was seen at any time before coming within fifty yards. The defendant, without looking to see, whether the landing was pre-occupied, as there was reason to suppose it might be, approached so near, that when the plaintiff’s raft was seen, it was too late, and the collision was inevitable. These are the facts. They establish negligence, and fix the defendant with a liability to make compensation for the damage.

Common prudence requires, and, in fact, it would seem to be a natural impulse, that one, on a descending raft, before deciding to “ take up” at a usual landing place, should look and see whether it was pre-occupied, as soon as he came to a position, from whence the fact could be ascertained-, and, at all events, before coming so near, that seeing could do no good, and the consequences be the same, as if he had not looked at all, but, having decided to “ take up” at that place, approached blindly and without regard to the damage he might cause to others.

If the plaintiff’s raft had been in a position, from which it could not be seen in full time to avoid a collision, it might have been his duty to keep a hand there or fix up a signal in order to give notice; but such was not the case, and the entire fault was on the part of the defendant,

What amounts to negligence, is a question of law. This is settled by numerous cases. And the plaintiff was enticed to special instructions upon certain facts presented by the testimony, or “ upon the whole case,” if he chose to subject himself to the disadvantage above pointed out. Consequently, it is error to refuse such special instructionsf when prayed for, and to submit the matter to the jury broad cast,” with the genera] instruction, that “ the plaintiff was entitled to recover, if the defendant did not use such care, as an ordinary prudent man would use in the management of his own affairs.”

Per Curiam. ' Venire dc novo awarded.  