Summary
In Clark v. R. R., 60 N.C. 109, the statutory presumption is held to prevail until rebutted by showing the exercise of due diligence would not have prevented the accident.
Summary of this case from Doggett v. R. ROpinion
(June Term, 1863.)
Where it had been made to appear by the plaintiff's testimony that his horse had been injured on a railroad by the running of a train against, it, and it was left doubtful from defendant's testimony whether the brakes had been applied to the wheels of the train after the animal was discovered to be on track, it was held that the prima facie case of negligence made by the act of 1856, ch. 7, was not repelled.
ACTION for negligence tried before Kerr, J., at Fall Term, 1862, of IREDELL.
The plaintiff claimed damages for injury done to his horses by defendant's agent negligently running the train of the railroad against them.
Christopher Clark testified that in November, 1860, when the train was passing near the residence of the witness, he saw a mule of the plaintiff passing over the track of the road, and at the time he heard the station whistle, and in a short time he heard the alarm whistle used to scare off stock; that the plaintiff's horses, which were injured, were on the side of the road opposite to that from which the mule came, and came upon the track; the alarm whistle continued to blow, and the horses started off on the track and ran away from the approaching train until they reached a cattle-guard, where they were overtaken and struck by the engine; that the train was stopped about 30 or 40 yards beyond the cattle-guard. He stated that the train was running at a moderate rate of speed when the mule crossed, and that the signal whistle for putting on the brakes was not sounded. He further stated that the grade of the road was such at this point as admitted of the train being stopped quite readily, if proper effort had been made to do so; that he has known it stopped suddenly on the same ground, some time before that, to prevent a collision; that the train was 212 yards from where the horses were overtaken when the station whistle was blown. Another witness for the plaintiff testified substantially to the same fact.
(110) The defendant introduced one Robert, the engineer in charge of the engine when the alleged injury was inflicted. He stated that while moving around a heavy curve in the road, at the rate of 20 miles an hour, which was the schedule rate, he saw before him, at a distance of about 50 yards, the plaintiff's horses on the track; that he was then in his proper position on the right of the engine; that the road curved to the left at this point, and his position on the right of the engine was unfavorable for seeing far ahead on account of the smokestack and the lamp which obstructed his view; that as soon as he saw the horses he immediately blew the whistle for the break and reversed the engine and he also blew the alarm whistle for driving off stock; that before he could get the engine stopped it struck the horses; that the train continued running for 30 or 40 yards before he could stop it. He further stated that he was running upon a heavy down grade with five cars attached; that he did all in his power to stop the train; and that under the circumstances it was impossible for him to have done so sooner that he did.
Another witness by the name Cox, who also an engineer, stated he was on the train at the time, near the engineer, and he gave substantially the same statement with Roberts.
The plaintiff then recalled his witness Clark and offered to prove by him that he, plaintiff, in company with witness, had an interview with Dr. Powell, president of the railroad company, soon after the injury was done, and upon plaintiff's representation of the extent of injury and the matter of its occurrence, Dr. Powell advised him to kill one of the horses and then to have both of them valued by two freeholders, and, if one of the horse should get well, to have them valued again in like manner, which was done accordingly. This evidence was objected to by the defendant, but admitted by the court. Defendant excepted. The action was commenced within six months after the injury sustained.
The court charged the jury that by the act of 1856 after the injury was satisfactorily shown by the plaintiff, it devolved upon the (111) defendant to prove that it did not result from the negligence of the defendant's agent; that in law the defendants were required to show that everything had been done which, under the circumstances, it was possible to do to prevent the injury; that in the opinion of the court the brake ought to have been applied to aid in stopping the train when it was discovered that the horses were on the track; that there was no evidence that the brakes were so applied, the testimony being only that the whistle was blown as a signal for the brakes to be put on, and that the want of such proof left the presumption of negligence still standing against the defendant.
The defendant's counsel asked the court to instruct the jury that they had a right to infer that the brakes were applied from the testimony of Roberts and Cox.
This the court refused to do, but stated to the jury that, notwithstanding what Roberts and Cox had testified, the plaintiff was entitled to recover. Defendant excepted to the charge. Verdict for the plaintiff. Judgment, and appeal by the defendant.
Mitchell and Boyden for plaintiff.
Moore for defendant.
We are unable to discover any error in the charge of his Honor of which the defendant can complain. The act of 1856, chapter 7, makes the mere fact of killing cattle or other live stock by the engine or cars of a railroad company prima facie evidence of negligence on the part of such company. Proof of having killed the plaintiff's horse, then, having been made, the force of that law is to declare that the company's agents were guilty of negligence, of which they could not acquit themselves except by showing that there was no neglect whatever. It is not sufficient for them to prove that there was probably no negligence. They are put by the law under the heavy burden of proving affirmatively a negative. The difficulty of such a position is strongly exemplified in S. v. Patton, 27 N.C. 180, and S. v. Goode, 32 (112) N.C. 49, decided under the law which made the examination of the mother of a bastard child prima facie evidence of its paternity. In the case before us, we think, for the reasons given by his Honor in the court below, that the prima facie case made by the plaintiff was not overthrown by the testimony given for the defendant. His Honor might, shown some neglect by not having placed himself in such a position that he could see along the curve of the road around which the cars were running. Of that, however, the facts stated do not enable us to give a definite opinion.
PER CURIAM. No error.
Cited: Battle v. R. R., 66 N.C. 344; Pippen v. R. R., 75 N.C. 58; Doggett v. R. R., 81 N.C. 466; Winslow v. R. R., 90 N.C. 74; Baker v. R. R., 133 N.C. 34.