
    NATHAN S. A. CHAFFIN v. ALEXANDER R. LAWRANCE.
    Where the instruction, asked for by counsel impliedly assumes as true a fact that has not been proved in the case, it is not error in the court to refuse it.
    A right verdict on the question of negligence will cure a wrong charge by the court on that point. (The case of Scott v. the Wilmington and Weldon Railroad Company, 4 Jones’ Rep. 432, explaining- the cases of Bilis v. Portsmouth and Roanohe Rail/road Company, 2 Ire. Rep. 138, and Herring v. Wilmington and Raleigh Railroad Company, 10 Ire. Rep. 402, cited and approved.)
    AotioN on the case, tried before PeesoN, J., at the last Eall Term of Davie Superior Court.
    In the Spring of 1855, the defendant, being the owner of a stud-horse, had a stand at Mocksville. The horse was groomed by a negro man belonging to the defendant. The plaintiff sent his mare by a negro man of his own, to be-served by the horse at his stable where he was usually let to mares. The plaintiff’s mare was tried and seemed to be anxious. The horse was let to her and she stood quietly until mounted, wh§n she began to back, at-the same time squatting and sinking in the haunches. The plaintiff’s servant was holding the mare by the bridle. She soon sank down too low for the horse, when his groom pulled him away. About the saíne time, the mare squatted or sank down upon her rump, jerked the bridle out of the hand of the servant holding her, fell over upon her side and died instantly. It was in evidence thajb the ground was a little sidling, and very slippery in consequence of rain that morning; that it was a hard-trod stable-yard, the soil of which was thickly interspersed with small stones; that it was the place commonly used for the purpose, and had been for a long time; that there were signs of the slipping of horses’ feet on the yard.
    The plaintiff’s counsel requested the Court to charge the jury that, if the ground was a little sidling and very slippery, there was negligence, in law.
    The Court refused the instruction as prayed, but told the jury that if they should find that the ground was a little sidling and very slippery, and that the operation would probably be attended with danger from these causes, there was, in law, negligence. Plaintiff’s counsel excepted.
    Verdict for the defendant. Judgment and appeal.
    
      Boyden, for the plaintiff.
    Olement, for the defendant.
   Battle, J.

The facts of the case, as they appear in the plaintiff’s bill of exceptions, did not justify the instruction which his counsel called upon the Court to give. There was very slight, if any, evidence that the mare came to her death by slipping, supposing that the lot where the transaction took place “ was a. little sidling and very slippery,” and that “ there were signs of the slipping of horses’ feet in the yard.” The manner in which she is stated to have sunk down and fell dead, almost precludes the idea that her death was caused by slipping, and yet the instruction prayed, impliedly assumed that the fact was so. If the instructions prayed had been that, if the jury found that the lot was sidling and very slippery, and that in consequence thereof the mare slipped and fell, it-was, in law, negligence, then the question of law would have been fairly raised; but that is not so where a material fact is to be assumed as true by the court which ought to be submitted to the jury. The counsel for the plaintiff cited and relied on Herring v. Wilmington and Raleigh Railroad Co., 10 Ire. Rep. 402, and Ellis v. Portsmouth and Roanoke R. Road Company, 2 Ire. Rep. 138, to show “that when the plaintiff shows damage resulting from the act of the defendant, which act, with the exercise of proper care, does not ordinarily produce damage, he makes out a prima faeie case of negligence which cannot l repelled but by proof of care, or some extraordinary acc ent which makes care useless.” The case of Scott v. Wilmington and Weldon Railroad Company, 4 Jones’ Rep. 432, explain this proposition and shows that it applies only to those case; where the things damaged remain stationary and always in t e same condition, and that it has no appplication to those cases where the things inj urecl, and the circumstances connected with them, are constantly varying. Ileuce, the Court say that there is a manifest distinction between burning a barn, or a fence, and running over and killing a slave or a cow, in the consideration of what shall be deemed negligence in those who have the management of the rail-road cars. In the former case, the barn or the fence remains stationary, while in the latter, the slave or the cow may be constantly changing his or her position. So that as things do not remain in the same condition, the question as to how the injury was done, is open for enquiry; and as the plaintiff alleges negligence, it is for him to make the proof.

In the present case, it ought to have been shown by the plaintiff how the animals were placed, and whether, from her position, the mare was likely to slip and did slip down, and thereby lost her life. From the facts as set forth in the bill of exceptions, we cannot see that the defendant was guilty of negligence, and as the verdict of the jury upon that question is apparently right, we need not examine the propriety of the Judge’s charge. It is now well settled that a right verdict upon the subject of negligence, will cure a wrong charge, even supposing that his Honor’s charge was wrong. Upon which, however, we do not express an opinion. See Smith v. Shepard, 1 Dev. Rep. 461; Hathaway v. Hinton, 1 Jones’ Rep. 247.

Per Curiam, Judgment affirmed.  