Exception No. 3 of the plaintiff is based upon the following facts: After the case was given to the jury by the judge, it was agreed by counsel, with the approval of the court, that the clerk should take the verdict. The clerk went to the courtroom to receive the verdict and, without asking them whether or not they had agreed upon their verdict, he asked them to hand him the issues, and the issues were handed to him, answered as follows by the jury: The first issue, “Yes”; second issue, “Yes”; third issue, “No”; fourth issue, “$2,500.” That the clerk thereupon handed the issues back to said jury and said to them that they had better retire to their rooms and reconsider the issues and see if answers were not in conflict with the judge’s charge. That one of the jurors asked, “In what respect?” The clerk salid to him that he could not instruct him as to that; that they could retire and see for themselves; and the jury immediately retired to their room.
*311Tbe next morning, wbieb was Sunday, about twenty minutes after 10 o’clock, tbe jury returned tbe verdict of record. To tbis tbe plaintiff excepted for tbat tbe verdict of record- is not tbe proper verdict, and before judgment moved for a new trial and tbat botb verdicts be set aside. Tbe court, being of opinion tbat tbe defendant was entitled to judgment on tbe verdict as returned to tbe clerk, overruled tbe plaintiff’s motion, and tbe plaintiff excepted.
It was error upon tbe part of tbe clerk to bave given any instructions whatever to tbe jury. It was not for bim to say whether they bad followed tbe charge of tbe court or not. When tbe jurors tendered to bim tbe issues, on Saturday night, it was bis duty to bave accepted them under tbe instructions of tbe court and tbe agreement of counsel, and not bave undertaken to advise tbe jury as to their attitude. In so doing be overstepped bis authority.
Tbe plaintiff tendered an issue as follows: “Notwithstanding any negligence on tbe part of said plaintiff, could tbe defendant, by tbe exercise of due care and prudence, bave prevented tbe injury?” Tbe court refused to submit tbis issue as tendered, but submitted it, modified so as to read: “Notwithstanding any negligence on tbe part of said plaintiff, could tbe defendant, by tbe exercise of due care and prudence, bave prevented tbe injury after the perilous condition of the plaintiff was discoveredV’ Tbe plaintiff excepted, and tbis is her second exception.
His Honor erred in refusing to submit tbe issue as tendered by tbe plaintiff. It is well settled in tbis State tbat where tbe plaintiff is guilty of contributory negligence tbe defendant must exercise ordinary care and diligence to avoid tbe consequences of tbe plaintiff’s negligence, and if by exercising due care and diligence tbe defendant can discover tbe situation of tbe plaintiff in time to avoid injury, tbe defendant is liable if it fails to do so. Denmark v. R. R., 107 N. C., 189; Willis v. R. R., 122 N. C., 906; Pierce v. R. R., 124 N. C., 85; Powell v. R. R 125 N. C., 371; Bogan v. R. R., 129 N. C., 155; and many other subsequent decisions of tbis Court
Tbe defendant seeks to avoid tbe consequences of tbis error upon tbe part of tbe court by attempting to show tbat bis Honor charged tbe law correctly, and tbat tbe jury must bave understood tbat tbe answer to tbe third issue was not to depend solely upon whether tbe engineer did actually discover tbe plaintiff’s condition, but whether tbe engineer by exercise of ordinary care could bave discovered it.
Ve bave examined tbe charge with great care, and we find tbat bis Honor did instruct tbe jury once to tbat effect, but be instructed them otherwise and erroneously in other parts of bis charge. In view of tbe language of tbe issue, together with the conflicting charge, we think tbe jury were most probably misled.
New trial.