after stating the case: There was evidence on the trial tending to prove that the flow of the water of the creek mentioned was obstructed, retarded and ponded back in some considerable measure by the trees, tree-tops; trash, logs and like obstructions. This evidence was pertinent and important, and the Court should have appropriately directed the attention of the jury to it, as it did particularly direct their attention to other pertinent evidence; especially it should have done so in compliance with the defendant’s special request. Although the defendant may not have been entitled to the whole of the instruction asked for and denied, still the Court should have given so much thereof, or the substance of it, as it was entitled to have. The Court instructed the jury in the course of its charge that “if the damage sustained by the plaintiff is due to the embankment of the public road, or if any part of it is due to that cause, or any other cause than the negligent construction of the railroad embankment, the defendant is not liable for such damage.” This, we think, was not a sufficient compliance with the defendant’s request. Taking the latter, the evidence and instruction thus given, it may have been, perhaps was, misleading to the jury. The Court directed their attention specially “to the embankment of the public road” as an obstruction to be considered, and also to “arty other cause ” of obstruction as to which there was evidence, but as it had expressly denied the special instruction asked for, based in part upon the evidence in respect to obstructions caused by “the trash, logs, rafts and trees in the creek,” the jury may have supposed that these did not constitute obstructions to *61b'e considered by them, otherwise the Court would have mentioned them, just as it did the embankment which was also mentioned in the special instruction. As the Court directed their attention specially and gave prominence to one cause of obstruction specified in this instruction, and did not.in that connection, or at all, mention other similar prominent causes so specified, the jury may have believed that the latter were not such obstructions as they ought to consider. The omission (no doubt inadvertent) may have misled the jury, and hence there is error.
In respect to the alleged contributory negligence of the plaintiff, the Court instructed the jury that “the rule of law is, that if the circumstances were such that aman of ordinary care and prudence would have planted and cultivated his crop upon said lands, then he was not guilty of contributory negligence.” In this there is error. What is negligence is a question of law, to be decided by the Court when the facts are ascertained, accepted as true or admitted, and when the evidence is conflicting the Court should tell the jury that there would or would not be negligence, accordingly as they might find the facts to be in varying aspects of the evidence. Emry v. Railroad, 109 N. C., 589, and the cases there cited. If the Court should fail, in complicated cases, to instruct the jury as to every possible aspect of the evidence, this would not be'error, unless the complaining party should ask it to do so. Such cases are, in this respect, not different from other cases. But the Court should, as in other cases, be careful to present every just, distinct view of the evidence to the jury, with appropriate instructions as to the law applicable.
The defendant is entitled to a new trial, and we so adjudge.
Error.