McDaniel v. Atlantic Coast Line Ry.

• Citation: 130 S.E. 208,190 N.C. 474
• Decision Date: 12 November 1925
• Docket Number: 374.
• Parties: MCDANIEL v. ATLANTIC COAST LINE RY.
• Court: United States State Supreme Court of North Carolina

130 S.E. 208

190 N.C. 474

MCDANIEL
v.
ATLANTIC COAST LINE RY.

No. 374.

Supreme Court of North Carolina

November 12, 1925

Appeal from Superior Court, Forsyth County; Finley, Judge.

Action by L. J. McDaniel against the Atlantic Coast Line Railway. Judgment for plaintiff. On appeal to superior court sitting as an appellate court, judgment of county court for plaintiff was affirmed, and defendant appeals. Reversed and remanded.

Ruling that, if charge is correct as a whole, it is not reversible error, not applied where erroneous charge not corrected or withdrawn.

Thomas W. Davis and W. A. Townes, both of Wilmington, Craige & Craige, of Salisbury, and Parrish & Deal, of Winston-Salem, for appellant.

Swink, Clement & Hutchins, of Winston-Salem, for appellee.

STACY, C.J.

Plaintiff brings this action to recover damages for an alleged negligent injury to a carload of oranges shipped on February 8, 1921, from Zolfo, Fla., to New Bern, N. C., and routed over the defendant's lines. Upon denial of liability and issues joined in the Forsyth county court, there was a verdict and judgment in favor of the plaintiff for $300 with interest from February 14, 1921. On appeal to the superior court of Forsyth county, sitting as an appellate court (chapter 520, Public Local Laws 1915), the judgment of the county court was upheld. The case comes to us for a review of the judgment of the superior court affirming the judgment of the county court.

We deem it unnecessary to consider more than one exception. There was error in the charge of the trial court in regard to the burden of proof. The following excerpts constitute the basis of two of the defendant's exceptive assignments of error:

(1) "If you find by the greater weight of the evidence that the oranges were delivered in good condition and arrived in a damaged condition, then the burden of proof shifts to the defendant."

(2) "Now, gentlemen of the jury, I have told you about the burden of proof. I again call your attention to that. If you find by the greater weight of the evidence that this fruit was received in good condition and that it arrived in bad condition, then the plaintiff would have made out a prima facie case, but a prima facie case can always be rebutted. It is for you to say whether or not the defendant, the burden of proof having shifted to the defendant, as to whether or not the defendant has rebutted this prima facie case of the plaintiff."

These instructions, it must be conceded...