Brinkley v. Wilmington & W.R. Co.

• Decision Date: 06 March 1900
• Citation: 35 S.E. 238,126 N.C. 88
• Parties: BRINKLEY v. WILMINGTON & W. R. CO.
• Court: North Carolina Supreme Court

35 S.E. 238

126 N.C. 88

BRINKLEY v. WILMINGTON & W. R. CO.

Supreme Court of North Carolina

March 6, 1900

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

Action by D. O. Brinkley against the Wilmington & Weldon Railroad Company for the killing of a horse. From a verdict and judgment for plaintiff, defendant appeals. Affirmed.

On motion for dismissal at the close of plaintiff's evidence, such evidence must be taken as true, and construed in a light most favorable to plaintiff.

A. O Gaylord, for appellant.

H. S Ward, for appellee.

DOUGLAS J.

This is a civil action for damages on account of the alleged negligent killing of the plaintiff's horse. The following is the evidence for the plaintiff, as taken from the record "Abner Sawyer, for the plaintiff, testified: 'I was in plaintiff's field, through which the railroad runs, on the day and at the time the horse was killed, and saw the horse and the train, between twelve and one o'clock p. m. It was the freight train coming into town. Train was behind time,--was due at noon. The horse was on the track, which was through the field, and was 100 yards ahead of the train when I first saw it. My attention was attracted by blowing of whistle. I looked. The train was running at its usual speed. The horse was running ahead of train about 100 yards. Horse was running along roadbed, at the ends of the cross-ties. He ran along ends of ties till about 15 yards from a little trestle which spans a ditch, when he jumped on the track and ran on the trestle. His leg went through, and was broken above the knee. Horse pulled himself up; got over trestle and of the track. From where I first saw horse running along ends of ties, it was 200 yards to trestle. When horse fell through trestle, he was still 100 yards ahead of train. Along that part of track where horse was running, there was a ditch on each side of the roadbed, and a bank outside the ditch. Ditch was 2 feet deep, and the bank a foot above the ditch. Not room enough between the end of ties and ditch for a horse to turn around. Horse could not have gotten off of right of way without jumping the ditch and bank. Near the trestle the ditch bends across the right of way and passes under the trestle. This ditch near the trestle was 12 feet wide and 6 feet deep. Between this ditch and the roadbed it is marshy. Horse could not have gotten off the roadbed near trestle on account of the marsh and the ditch. The roadbed on which horse was running is lower than the field, 2 or 3 feet. The train kept blowing its whistle. When the horse got to where ditch bends in towards trestle, he jumped upon the track. When the horse fell through, train slowed down some, and stopped a few steps before reaching trestle. The horse got off trestle about when the train stopped. The railroad runs straight through field. Where I first saw horse the ditch is 2 feet wide. It gets wider as it approaches trestle. Roadbed is in good condition.' D. O. Brinkley, the plaintiff, testified that the horse was ruined; worth $35. Ties on the trestle were 18 inches apart."

Defendant moved for judgment of nonsuit under the act of 1897. Motion overruled. Defendant excepted. The defendant then introduced evidence which it is not necessary for us to consider. The record further states as follows: "Defendant, in apt time, requested the court to charge the jury that, from all the evidence, defendant was not guilty of negligence, and they should answer the first issue, 'No.' (Refused Exception.) Second exception: The court charged, among other things: 'If, when the horse began running along the roadbed, the engineer had reason to believe from the surroundings that the horse would probably run upon the trestle unless he should stop the train as soon as he reasonably could, and that by at once...