Boutten v. Wellington & P.R. Co.

• Decision Date: 28 May 1901
• Citation: 38 S.E. 920,128 N.C. 337
• Parties: BOUTTEN v. WELLINGTON & P. R. CO.
• Court: North Carolina Supreme Court

38 S.E. 920

128 N.C. 337

BOUTTEN v. WELLINGTON & P. R. CO.

Supreme Court of North Carolina

May 28, 1901

Appeal from superior court, Bertie county; Starbuck, Judge.

Action by Thomas Boutien against the Wellington & Powellsville Railroad Company. From a judgment in favor of defendant plaintiff appeals. Reversed.

In an action against a railroad for injuries, the defense set up was that plaintiff had executed a release from all liability. Plaintiff was illiterate, and had signed the release by making his mark, and it was uncontradicted that no money had ever been paid him. That portion of the release in which the consideration should have been inserted was left blank, and plaintiff testified that it was not read to him, but that he signed it because he was informed that it was the means whereby the one who had nursed him while suffering from his injuries could secure money from the railroad company. The scroll following plaintiff's cross mark was made by some one other than plaintiff. Held, that it was error to nonsuit plaintiff on the ground that, the release being proven, the burden was on plaintiff to impeach it, and that there was no evidence so to do.

Action for damages for injuries received on the track of defendant. Plaintiff testified in his own behalf as follows: "Last year I was at Ahosky, in the employ of the Norfolk & Carolina Railroad Company. Had started to my work. Work carried me to this side of Stony creek. I was walking along the Wellington & Powellsville Railroad track. Was getting $15 a month. I was taken sick while walking along, and laid down on the track. The first thing I knew the train was on me. I had been drinking. Drank half pint that day. At this place the Norfolk & Carolina used the Wellington & Powellsville track (narrow gauge). Runs three miles along this track. I was lying across all three of the rails, my head on the cross-ties just outside of the Norfolk & Carolina rail. It was not customary to run a train on the Wellington & Powellsville on Sunday. Defendant's train struck my legs, and dragged and pushed me along the track about ten feet. I hallooed when it struck me. They stopped. It was in the day time. It was a straight stretch coming from Ahosky to where I was, two miles from Ahosky. I was sick three months; hurt in my hip and legs; one of my toes mashed to pieces. I was asleep when the train struck me." On cross-examination: "I have never been paid anything on the release, which is as follows 'Whereas, the undersigned was hurt and injured on the track of the Wellington & Powellsville Railroad Company on or about the 19th day of February, 1899, and claims that the injury was the result of carelessness of said company in running its train, and which carelessness and liability the said company denies: Now, in the consideration of ___ dollars, this day paid to him in full and final compromise settlement of all claims and rights of action against said company, the said ___ does hereby acquit, discharge, and release said Wellington & Powellsville Railroad Company and its officers, servants, and agents from any and all liability to him on account of said injury, and does hereby satisfy and receipt to them in full of all demands on account thereof. Witness my hand and seal this 10th day April, 1899. Thos. x (his mark) Bowden. [Seal.]' I signed this paper before Mr. Copeland, and made my mark to it. I cannot read or write. I thought it was a paper that enabled Uncle Eli Williamson to get his money for waiting on me while I was laid up with the injury. This is all I understood about it. I signed it so he could get paid. Did not know the nature of the paper. Eli Williamson had told me before the paper came to me to be signed that that was the only way he could get his money. I was at his house during my sickness. Mr Copeland, the postmaster, brought the paper to me. No money was paid to me. I was drunk--was drunk sick--when I laid down. Don't know how long I laid there before train came along. I saw it coming towards me. The train was running pretty fast when it struck me. I think it was as much as half a mile from me when I first saw it. Don't know whether it was a mile. I saw it plain enough to tell that there was no headlight on it. It was just before sunset. I did not get off the track, because I was not able. My feet were in middle of track. It was three months after I was hurt when I signed the paper. I was sitting up. I wanted Eli to be paid, and I signed the paper so he could get his money. He had taken care of me and nursed me during my sickness. Dr. Mitchell attended me as a physician. Defendant's superintendent told me he was going to pay the physician also. I do not know whether he paid him. The paper was not read to me. Nobody was present when it was signed, except Copeland and Uncle Eli. Copeland is the postmaster. Eli is a colored man." (Plaintiff is a colored man.) Defendant moved to dismiss under the statute as in case of nonsuit. Motion allowed. Plaintiff excepted, and appealed from the judgment.

Montgomery, J., dissenting.

St. Leon Scull and B. B. Winborne, for appellant.

Martin & Peebles and Francis D. Winston, for appellee.

CLARK J.

It was error to nonsuit the plaintiff, and thereby take from him the right to have the jury pass upon the defense set up by the defendant. Under our system of procedure the tribunal for the trial of disputed allegations of fact is a jury, not a judge. So important and sacred is the right that it is protected by provisions in both the state and federal constitutions. Section 19 of the bill of rights (now article 1) of the state constitution, says, "The ancient mode of trial by jury is one of the best securities of the rights of the people and ought to remain sacred and inviolable." When a party upon whom rests the burden of proof fails to introduce any evidence, the court can direct a verdict against him, or, if he is the plaintiff, direct a nonsuit. But the judge cannot direct a verdict in favor of a party upon whom rests the burden of proof, for that would be a finding by the judge that his evidence is true, which is expressly forbidden by the act of 1796 (now Code, § 413). "No judge shall give an opinion whether a fact is fully or sufficiently proved, such matter being the true office and province of the jury." If there is no evidence to the contrary, all the court can do is to say to the jury that, "if they believe the evidence," to find the issue in his favor. Spruill v. Insurance Co., 120 N.C. 141, 27 S.E. 39, with cases therein cited, and a long line of cases since, citing and approving it. Here the plaintiff introduced evidence tending to show that, though there was contributory negligence upon his part, the proximate cause of the injury was the subsequent negligence of the defendant, who had the "last clear chance." The plaintiff could not have been nonsuited upon that evidence, and it is not even contended that he could be. The defendant set up in defense an alleged release, to which the plaintiff filed a reply denying the same was signed by him for the purpose of a release, alleging fraud and mistake, and that no consideration was paid. The defendant contends that, the signing of the release being proven, the burden was upon plaintiff to prove the matters to impeach it, and that, there being no evidence to do this, a nonsuit was proper. But, firstly, it is alleged, and the evidence is uncontradicted, that not a penny, nor any consideration whatever, was ever paid the plaintiff; and, indeed, the release itself appropriately leaves the consideration blank. It was, therefore, nudum...