Carruthers v. Atlantic & Yadkin Ry. Co.

• Decision Date: 19 June 1940
• Docket Number: 676.
• Citation: 9 S.E.2d 498,218 N.C. 49
• Parties: CARRUTHERS v. ATLANTIC & YADKIN RY. CO. (two cases).
• Court: North Carolina Supreme Court

9 S.E.2d 498

218 N.C. 49

CARRUTHERS v. ATLANTIC & YADKIN RY. CO. (two cases).

No. 676.

Supreme Court of North Carolina

June 19, 1940

New trial.

Frazier & Frazier, of Greensboro, and Walser & Wright, of High Point, for plaintiff-appellant.

Hobgood & Ward and Chas. M. Ivey, Jr., all of Greensboro, for defendant-appellee.

SEAWELL Justice.

(Pertinent facts are included in the opinion).

The plaintiff, Carruthers, as Administrator of Herbert L Burroughs, and as Administrator of Luther Burroughs, brought separate actions against the defendant Railway Company for recovery of damages for the injury and death of his intestates, respectively, alleged to have been brought about by the negligence of the defendant. The actions were consolidated and tried by consent in the lower court, and in this Court the appeals of plaintiff were heard together.

The evidence pertinent to our investigation may be succinctly stated. It tends to show that plaintiff's intestates were approaching and attempting to cross defendant's track at a highway crossing, and that a train operated by defendant collided with the motor vehicle in which plaintiff's intestates were traveling, causing injuries which resulted in the death of both of them.

The occupants of the car were approaching the track from a westerly direction and the train was approaching the crossing from a southerly direction. The evidence tended to show that to the right of the occupants of the car and in the direction from which the train was approaching there was an embankment which partially obscured the approach of the train for some distance in that direction from anyone approaching at some distance from the track. The evidence as to these distances does not purport to be exact.

The plaintiff offered the evidence of Arlie Dunn that he was approaching the crossing from the north over a road parallel with the railroad and saw the train approaching the crossing from the south. That he was about 400 feet from the crossing and that the whistle did not blow and that the bell did not ring; that there is a bank on the right-hand side of the highway along which the deceased were traveling and on the west side of the railroad; that there were woods on the right of the road and a dirt embankment 12 or 15 feet high.

Witnesses for the defendant testified that the whistle did blow.

Several witnesses testified that they did not see Arlie Dunn at the scene of the wreck, and there was evidence on the part of the defendant tending to show that he arrived later.

All of plaintiff's assignments of error relate to instructions given the jury upon the trial. Mainly, they hinge about the oft-repeated instructions given by the judge characterizing the evidence of the plaintiff as to the blowing of the whistle and ringing of the bell of the approaching train as "negative" evidence and "weak".

Plaintiff contends that in these instructions the trial judge not only mistakenly characterized his evidence as negative but pointed out that it was weak, drawing a distinction between positive and negative evidence, thereby directly attacking the evidence on which he sought to show the negligence of the defendant in not sounding a timely warning at the crossing as being of a negative character and weak.

The matter objected to is embodied in a special instruction asked for by the defendant and given in the charge, which in part reads as follows:

"Negative evidence, meaning testimony that an alleged fact did not exist, although weak, is admissible, if the witness's situation was such that he would have known of it if it had existed. While the affirmative testimony of a credible witness is ordinarily more reliable than the negative testimony of an equally credible witness, still testimony that a person nearby who could have heard and did not hear the sounding of a whistle or the ringing of a bell is some evidence that no such signal was given."

"The entire probative value of the negative fact lies in the circumstance at once to be stated. Such evidence is meaningless, however, if the non-seeing or the non-hearing are equally consistent with the occurrence of the events themselves. Nothing is shown of any value in evidence if at the time of the alleged occurrence of these events the witness was so situated that they well might have occurred and he neither have seen or heard them. 3 Modern Law of Evidence, Sec. 1758. The basic psychological, as well as probative, weakness of negative evidence lies in this: The fact may have taken place in the sight or hearing of a person who may not have perceived it; or who perceived it falsely because of defective perceptive apparatus, unfavorable surrounding conditions, or the state of mind of the witness or who, having originally perceived it correctly, has since forgotten it. Testimony of witnesses that they did not hear a locomotive signal at a given time and place is given probative effect according to the surrounding circumstances, and is as 'forceful as the opportunities for observation, and the concentration and attention of the witness on what was going on at the time, indicate, when considered with all the circumstances which bear on the credibility of witnesses generally."'

"The witness Dunn's testimony that the whistle did not blow nor the bell ring is what is called negative evidence. But before you have the right to give any weight whatever to this testimony, you must find by the greater weight of the evidence that he was in a position to hear and could have heard the whistle if it had blown or the bell if it had rung. Unless you find by the greater weight of the evidence that he was within hearing distance of the whistle of the engine or the ringing of the bell as the engine drew near to the crossing, if the whistle had blown or the bell had rung, you cannot find that he was in a position to hear and you would not be entitled to give any weight whatever to his statement that the whistle did not blow nor the bell ring and you will answer the first issue No."

We do not feel that the case at bar justifies an extended discussion of the distinctions between positive and negative evidence,--either here or before the jury. Discussions of that sort, often scholastic, or at least highly metaphysical, could give the jury little aid in arriving at the truth of the matter and are likely to lead to confusion. Scientifically trained jurors, whether desirable or not, cannot be produced at one sitting while in medias res. And, perhaps, the school in which jurors learn to think straight is to be preferred, although it never closes a session, dismisses a pupil, or gives a diploma. It will be found that most of the things the Court needs to impress are well within the everyday experience and understanding of the jurors in simpler form, and in dealing with the elements of credibility actually involved the Court will usually find familiar instruments of guidance for the jury, without the necessity of making an excursion into...