Fleming v. Wash. &

• Decision Date: 17 February 1915
• Docket Number: (No. 38.)
• Court: North Carolina Supreme Court
• Parties: FLEMING. v. WASHINGTON & V . R. CO.

84 S.E. 270

168 N.C. 248

FLEMING.

v.WASHINGTON & V . R. CO.

(No. 38.)

Supreme Court of North Carolina.

Feb. 17, 1915.

Appeal from Superior Court, Beaufort County; Bond, Judge.

Action by S. Fleming against the Washington & Vandemere Railroad Company. Judgment for defendant on nonsuit, and plaintiff appeals. Affirmed.

This action was brought to recover the value of a cow, which plaintiff alleges was killed on the defendant's track by its negligence. The plaintiff testified for himself that he found the cow on the right of way of the railroad company about two days after the injury. He then called as a witness the engineer of the defendant railroad company, who testified that on the night of August 27, 1910, he was running an engine of the defendant railroad company; that it was very dark and raining; that the railroad bed was in good condition, and the engine was properly equipped with headlights and brakes, and was in good condition generally; that he was keeping a very careful lookout and saw some cows on the track about 100 yards ahead of him; that he was running at the time about 25 miles per hour; that as soon as he saw the cows he sounded his whistle and applied his brakes, and in fact did everything he could to keep from striking them, but that he did strike one cow and knocked her off the track; that it was impossible to stop the train sooner because of the slippery condition of the rails, due to the rain. The cow was killed August 17, 1910, and this action was commenced April 19, 1912. Plaintiff proposed to account for the delay in bringing his action by proving that some one, who was connected with the defendant, told him that a suit would not be necessary; but there was no proof, nor offer to prove, who made the statement, or, if it was made, that the person had any authority from the defendant to make it. The evidence was excluded, and the court, on motion, nonsuited the plaintiff, and he appealed.

L. M. Scott, of Blounts Creek, for appellant.

Small, MacLean, Bragaw & Rodman, of Washington, N. C, for appellee.

WALKER, J. (after stating the facts as above). [1] The judgment of the court was manifestly correct There was no presumption or prima facie case of negligence, under the statute (Revisal, § 2645), as the action was not commenced within six months after the animal was killed, and it is provided therein that:

"No person shall be allowed the benefit of this section unless he shall bring his suit within six months after his cause of action shall have accrued."

He offered no legal excuse for his delay iu suing. That some one, without authority to represent the railroad, told him that an action would not be necessary, was no excuse. The defendant is not responsible for the statements or opinions of any one not authorized to speak for it Besides, the plaintiff's delay continued for more than two years without any explanation. Why, if he was relying upon the statement of his...