Opinion
(Filed 23 December, 1909.)
1. Questions for Jury.
In this case the issue as to negligence was one entirely of facts, with the burden of proof on defendant, and no error is found to have been committed on the trial.
2. Measure of Damages.
In this case no error is found on the part of the lower court upon the issue of damages, as upon the evidence the damages awarded were proper upon defendant's own theory.
APPEAL from Joseph S. Adams, J., at September Term, 1909, of BUNCOMBE.
Zeb. F. Curtis and Craig, Martin Thompson for plaintiff.
Moore Rollins and W. B. Rodman for defendant.
CLARK, C. J., did not sit on the hearing of this case.
Action, to recover damages on account of the negligent killing of plaintiff's intestate, B. Allen Bryant, a passenger, who was admitted to have been killed in a collision between a passenger and freight train of defendant company, alleged to have been caused by the negligence of the defendant Leonard, a brakeman in the company's employment.
The two issues of negligence and damage were submitted and found for the plaintiff. The defendant appealed.
1. In respect to the issue of negligence, the matter (524) in controversy is one of fact purely, with the burden upon the defendants to show that they discharged their duty to the passenger, and we find no error committed on the trial of it.
2. In respect to the assignment of error in the charge of the judge upon the issue of damage, we are of opinion that it is unnecessary to pass upon or discuss it. The evidence in regard to the net earnings of the deceased, and his age and condition in life, business, etc., is uncontradicted, and we think that it fully warrants the sum awarded by the jury, even if it be gauged with reference to the theory contended for by defendant.
No error.
The Chief Justice did not sit on the hearing of this case.