Cable v. Southern Ry. Co.

• Decision Date: 15 March 1898
• Citation: 29 S.E. 377,122 N.C. 892
• Parties: CABLE v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

29 S.E. 377

122 N.C. 892

CABLE v. SOUTHERN RY. CO.

Supreme Court of North Carolina

March 15, 1898

Appeal from superior court, Guilford county; McIver, Judge.

Action by M. L. Cable against the Southern Railway Company. Plaintiff was nonsuited, and appeals. Reversed.

A party who introduces sufficient evidence to support a verdict in his favor is entitled to a submission of the case to the jury, no matter how strong the contradictory evidence may be.

C. M Stedman, R. R. King, and Schenck & Schenck, for appellant.

F. H Busbee, for appellee.

DOUGLAS J.

This is an action brought by the plaintiff to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. The plaintiff, a passenger on defendant's train, was carried past his destination, and was injured by stepping off the train while in motion, by the direction of the conductor, as alleged. After the close of the testimony, the court below refused all prayers for instructions offered by the plaintiff, and "stated that he would charge the jury that the plaintiff on his own testimony was not entitled to recover, whereupon the plaintiff submitted to a nonsuit and appealed." This brings before us the single question whether there was sufficient evidence to go to the jury as to the negligence of the defendant. As upon this issue the burden was upon the plaintiff, the court might properly have directed a verdict in favor of the defendant, provided there was no evidence or nothing more than a mere scintilla tending to prove the negligence of the defendant. Wittkowsky v. Wasson, 71 N.C. 451; Spruill v. Insurance Co., 120 N.C. 141 27 S.E. 39. In the absence of such negligence, the plaintiff could not recover. This brings us to a consideration of the evidence.

In the present status of this case, we can consider only the evidence of the plaintiff and such of the defendant's evidence as is favorable to him, and must construe both in the light most favorable to the plaintiff. Abernathy v Stowe, 92 N.C. 213; Gibbs v. Lyon, 95 N.C. 146; Hodges v. Railway Co., 120 N.C. 555, 27 S.E. 128; Collins v. Swanson, 121 N.C. 67, 28 S.E. 65. In Springs v. Schenck, 99 N.C. 551, 555, 6 S.E. 406, this court says: "As the court, in effect, intimated on the trial that in no reasonable view of the evidence could the appellant recover, it must for the present purpose be accepted as true, and taken in the most favorable light for him, because the jury might have taken that view of it if it had been submitted to them." In State v. Allen, 48 N.C. 257, 264, Chief Justice Pearson, speaking for the court, says: "In the case now under consideration, the judge withdrew the facts from the jury, and instructed them that if the testimony was believed it was a case of murder, and there was no evidence of a legal provocation. So the prisoner has the right to insist that the testimony should be taken in the point of view most favorable to him; and that if, in any aspect, the evidence is consistent with his being guilty of manslaughter only, there was error in the manner in which the case was put to the jury,"--citing Avera v. Sexton, 35 N.C. 247, and Hathaway v. Hinton. 46 N.C. 243.

Among other things, the plaintiff testified that he got on the train at Stokesland, and paid his fare to Benaja, his destination; that the train did not stop at Benaja; and that as soon as he saw it was not going to stop he went back to see the conductor, and found him in the first-class car. The plaintiff further testified as follows: "He [the conductor] jumped up, and remarked that he had forgotten me; that he had to meet a train at Benaja; but at the same time he remarked that he was on a hill, and could not stop, and suggested that I jump from the train, as it was running slow. I refused. He suggested again that I jump, and I refused. He said he would slow up at the top of the hill, which was a safe place. I took him at his advice. As the train slowed up, about as fast as a man could walk, I went out on the platform. I saw a signal at the rear end of the train. It was a signal to go ahead. I did not step off the train, because I saw the lantern moving. At the same time I felt the increased motion of the train. I stepped off the train, thinking I was at a safe place. *** I believed it to be a perfectly safe place. In fact, the conductor had told me he would slow up at a safe place for me to get off. *** When he first told me to jump off, the train was not making less than 15 miles an hour,--as fast as it could go up hill. *** The conductor told me that he would slow up at a safe place on the top of the hill, and for me to get off when the train slowed up. I relied on his picking a safe place for me to get off. I got off when the train became very slow,--I suppose not faster than a man could walk; probably not so fast." The plaintiff also testified as to his injuries, loss of income, and other matters.

Taken in its most favorable light, this evidence was unquestionably sufficient to go to the jury. The court could not consider the rebutting evidence of the defendant, no matter how strong in contradiction, because that would be to compare the conflicting evidence and determine its relative weight. This can never be done by the court, as it is within the exclusive province of the jury. State v. Shule, 32 N.C. 153; State v. Allen, supra; Wittkowsky v. Wasson and Spruill v. Insurance. Co., supra, and cases cited therein; Hardison v. Railroad Co., 120 N.C. 492, 26 S.E. 630; Anniston Nat. Bank v. School Committee of Durham, 121 N.C. 107, 28 S.E. 134; White v. Railroad, 121 N.C. 484, 489, 27 S.E. 1002.

We have assumed that his honor intended to charge the jury that there was no evidence tending to prove negligence on the part of the defendant, since, if the defendant's negligence were proved or admitted, under no circumstances could the court find as an affirmative fact that there was contributory negligence. Contributory negligence is a plea in bar, the burden of which always rests upon the defendant, both as to allegation and proof. Any doubt that may have existed as to its character is now settled by chapter 33 of the Laws of 1887, which provides "that in all actions to recover damages by reason of the negligence of the defendant, where contributory negligence is relied upon as a defence, it shall be set up in the answer and proved on the trial." In Hardison v. Railroad Co., 120 N.C. 492, 494, 26 S.E 630, which was an action for the killing of stock, where section 2326 of the Code made a prima facie case of negligence against the defendant, the court says: "Under this statute, as we understand it, at the close of the plaintiff's (if the defendant had introduced no evidence), it would have been the duty of the court, in instructing the jury, to find the first issue for the plaintiff. But, as the defendant introduced evidence tending to show there was no negligence on the part of the defendant in killing the cow,--that is, to rebut the presumption, or prima facie case of the plaintiff,--it then became an issue of fact, which could not have been found by the court and should have been left to the jury." In Anniston Nat. Bank v. School Committee of Durham, 121 N.C. 107, 109, 28 S.E. 134, this court says: "But, no matter how strong and uncontradictory the evidence is in support of the issue, the court cannot withdraw such issue from the jury and direct an affirmative finding. To do this is to violate Act 1796 (section 413, Code)." In White v. Railroad, 121 N.C. 484, 489, 27 S.E. 1002, this court says: "The court can never find nor direct an affirmative finding of the jury,"--citing State v. Shule, 32 N.C. 153. This doctrine is also affirmed in Spruill v. Insurance Co. and Collins v. Swanson, supra, and in Eller v. Church, 121 N.C. 269, 28 S.E. 364,--all recent cases. In the United States courts, in which the judges are permitted to express an opinion upon the facts, it is held that the court may, under certain circumstances, find contributory negligence, but the following quotations, from a long line of cases, will show how strictly the rule is guarded: "The court proceeded upon the ground that contributory negligence upon the part of the plaintiff was so conclusively established that it would have been compelled, in the exercise of a...