Blue v. Aberdeen & W.E.R. Co.

• Decision Date: 26 November 1895
• Citation: 23 S.E. 275,117 N.C. 644
• Parties: BLUE v. ABERDEEN & W. E. R. CO.
• Court: North Carolina Supreme Court

23 S.E. 275

117 N.C. 644

BLUE v. ABERDEEN & W. E. R. CO.

Supreme Court of North Carolina

November 26, 1895

Appeal from superior court, Moore county; Hoke, Judge.

Action by Daniel Blue against the Aberdeen & West End Railroad Company. There was a judgment for defendant, and plaintiff appeals. Affirmed.

In an action against a railway company for damages from fire alleged to have been started by sparks from defendant's engine, an instruction that it is defendant's duty to keep its track clear of substances liable to be ignited by sparks as far as might be necessary to prevent fires, even to the full width of the right of way, held proper.

Shepherd & Busbee, W. E. Murchison, and J. W. Hinsdale, for appellant.

Douglass & Spence, Black & Adams, and Shaw & Scales, for appellee.

AVERY J.

The exception to the ruling of the court that the witness Riddick had not qualified as an expert seemed to be relied on with more confidence than any one of the great number taken on the trial. After the court had found, upon objection of defendant, that, on a previous preliminary examination, the witness had not shown that he had the peculiar skill and knowledge which proved his fitness to testify as an expert, a re-examination elicited the following statement from him "That he was professor of civil engineering and mathematics in the North Carolina College of Agriculture and Mechanical Arts; that he has made the subject of mechanics and of moving bodies a special study; that there are certain mathematical rules by which it can be ascertained how far moving bodies, such as trains, will go by their own momentum that he was thoroughly acquainted with these rules, and had applied them frequently; and that he thought in half an hour he could make a calculation by which he could ascertain the distance that this train would go at the place named, with the momentum described, and upon the grade as testified to by him. Witness said he had no actual experience in running railroad trains. He was not asked the question whether he could give an opinion satisfactory to himself." The plaintiff there-upon renewed the following questions "If the jury should find that a train, as described by defendant's witnesses, was moving up the long grade, and was travelling, when it reached the top, at the rate of 15 miles an hour, and they should find that the grade and the level of the road were as described by him, how far, according to the laws of moving bodies, would a train go by its own momentum?" The fireman and superintendent had testified that they had ascertained by actual experiment that it required but little steam to carry the engine along the level track to the landing after passing the highest point of the upgrade. H. A Page, an engineer, had testified that, since the last trial of this case, he had come over the top of the grade beyond Hicks' landing (where, according to plaintiff's theory, the fire was started by sparks emitted from the engine) at a speed of 15 miles per hour, and had run from there to West End without more power than the momentum of the train. The question whether any or how much steam was used to propel the engine with the train over the level track, after passing the highest point of the grade, had become material because of the greater tendency to emit sparks from the engine when the power is increased. "The preliminary question whether a witness offered as an expert has the necessary qualification is for the courts, and is largely discretionary with them." 1 Greenl. Ev. § 440, note B. And, "where there is any evidence of it, the finding, like that of the jury, is not reviewable in this court. State v. Davis, 63 N.C. 578, and other intermediate cases, down to Smith v. Kron, 96 N.C. 392, 2 S.E. 533." State v. Hinson, 103 N.C. 378, 9 S.E. 552. But it is contended for the plaintiff that this was not a ruling that there was sufficient evidence, but, in effect, an opinion that certain facts admitted do not qualify the witness, and therefore raises a question of law which is reviewable. The plaintiff insists that every one of the six cases cited to support the ruling of the court in Smith v. Kron, supra (State v. Davis, supra; State v. Andrew, Phil. [N. C.] 205; State v. Vann, 82 N.C. 631; State v. Sanders, 84 N.C. 728; State v. Efler, 85 N.C. 585; State v. Burgwyn, 87 N.C. 572), involved the admissibility of confessions, and that the rule as substantially stated in all was the same; it being held in every instance that the question whether a prisoner was influenced by hope or fear was one of fact where there was any evidence to sustain the judge's finding, but that it was the province of the court to decide, when such questions were raised, whether there was any evidence at all, or whether the facts found would warrant the admission of the testimony offered. Conceding the fact that the substance of these rulings is as contended, and giving the plaintiff the full benefit of the deduction he seeks to draw from them, the principle relied upon has no application to the case at bar. The judge stated the testimony of the witness in full, doubtless, but set forth in detail no formal statement of the facts found by him. The court, upon the testimony, held that the witness had not qualified himself as an expert; and, in the absence of any statement to the contrary, we must assume that this was his conclusion of fact. Whether he did not believe the witness at all, or whether he thought the witness was mistaken when he expressed the opinion that he could calculate with mathematical certainty how far a train, which he had heard described by witnesses, would move by the force of the momentum acquired at a speed of 15 miles per hour over a level surface, of which he had...