Cox v. Norfolk & C.R. Co.

• Decision Date: 23 December 1898
• Citation: 31 S.E. 848,123 N.C. 604
• Parties: COX v. NORFOLK & C. R. CO.
• Court: North Carolina Supreme Court

31 S.E. 848

123 N.C. 604

COX v. NORFOLK & C. R. CO.

Supreme Court of North Carolina

December 23, 1898

Faircloth C.J., dissenting.

Appeal from superior court, Halifax county; Norwood, Judge.

Action by J. S. Cox, administrator of N. L. Cox, against the Norfolk & Carolina Railroad Company. From a Judgment of Nonsuit plaintiff appeals. Reversed.

Plaintiff sued to recover for the killing of his intestate on defendant's track. No one saw the accident, which occurred on a bright, moonlight night. A witness testified that he found the body of intestate about midnight, lying across the track; that he saw a train pass two hours before on defendant's road, but that he heard no bell or whistle, though only 200 yards from the train. Another testified that he examined the body as it lay on the track and that it was in the track, and near a public footpath that intestate could not go out of town in any way without crossing a railroad; that a person could easily be seen near the path, on the night of the accident, from the depot. An expert engineer testified that the body was found 250 feet from the depot; that there was no obstruction between the depot and the path; that, if a man was keeping a lookout, he could see a man on the track for 100 yards on a bright, moonlight night; that, if the train was moving 4 miles an hour, it could have been stopped in 15 feet, or, at 8 miles an hour, in 30 feet. The path was an old road before the town was laid off into streets, and had been used by foot passengers ever since. There was evidence that deceased had been drinking. It was admitted that intestate was killed by the train. Held sufficient to submit the question of negligence.

W. A. Dunn and Claude Kitchin, for appellant.

Thos. N. Hill, MacRae & Day, and David Bell, for appellee.

DOUGLAS J.

This is an action brought by the plaintiff, as administrator of N. L. Cox, to recover damages for the negligent killing of his intestate by the defendant's engine. At the close of plaintiff's testimony, the defendant moved to nonsuit the plaintiff, under chapter 109 of the Laws of 1897. This is the act that has already given us so much trouble. It was doubtless intended by the legislature to save time and expense by cutting short an action devoid of merit, but its practical result is the very opposite. It gives the defendant two chances to one for the plaintiff, prolongs litigation, and may cause a palpable miscarriage of justice. As stated in Purnell v. Railroad Co., 122 N.C. 832, 835, 29 S.E. 953: "Before this statute, the defendant might make this motion; but if the court refused it, and the defendant offered further evidence, he lost the benefit of that motion. The motion could be renewed at the close of the evidence in the case, but would then depend upon the whole evidence,"--citing Sugg v. Watson, 101 N.C. 188, 7 S.E. 709. Now, however, the defendant, if his motion is overruled, can file his exception, and proceed with the case. In passing upon that exception, we would be compelled to ignore all the subsequent proceedings, including the additional evidence, the verdict, and the judgment. If we sustained the exception, the plaintiff must be nonsuited, even if the subsequent evidence of the defendant himself should show the plaintiff clearly entitled to recovery. If we overruled the exception, we must then proceed to review the case upon its merits. Thus, there would be practically two appeals, in one of which we might be compelled to nonsuit a plaintiff who had obtained a just judgment. We do not intend to criticise the legislature, but simply to call attention to the fact that the law in practical operation does not meet the public purposes of its enactment. While doing so, we still deem it our duty to enforce it.

The case as now before us presents the single question whether there was sufficient evidence to go to the jury as to the negligence of the defendant. The plaintiff's evidence must, for the present purpose, be accepted as true, and construed in the light most favorable for him. Avera v. Sexton, 35, N.C. 247; Hathaway v. Hinton, 46 N.C. 243; State v. Allen, 48 N.C. 257; Abernathy v. Stowe, 92 N.C. 213; Gibbs v. Lyon, 95 N.C. 146; Springs v. Schenck, 99 N.C. 551, 6 S.E. 405; Hodges v. Railroad Co., 120 N.C. 555, 27 S.E. 128; Collins v. Swanson, 121 N.C. 67, 28 S.E. 65; Cable v. Railroad Co., 122 N.C. 892, 29 S.E. 377; Whitley v. Railroad Co., 122 N.C. 987, 29 S.E. 783; Railroad Co. v. Lowell, 151 U.S. 209, 14 S.Ct. 281. It is well settled that, if there is more than a mere scintilla of evidence tending to prove the plaintiff's contention, it must be submitted to the jury, who alone can pass upon the weight of the evidence. State v. Shule, 32 N.C. 153; State v. Allen, 48 N.C. 257; Wittkowsky v. Wason, 71 N.C. 451; Spruill v. Insurance Co., 120 N.C. 141, 27 S.E. 39; Hardison v. Railroad Co., 120 N.C. 492, 20 S.E. 630; Anniston Nat. Bank v. School Committee of Durham, 121 N.C. 107, 28 S.E. 134; White v. Railroad Co., 121 N.C. 484, 27 S.E. 1002; Collins v. Swanson, supra; Eller v. Church, 121 N.C. 269, 28 S.E. 364; Cable v. Railroad Co., supra.

Applying these principles, we find the following evidence, which we think is certainly more than a scintilla, and which should have been submitted to the jury as tending to prove the negligence of the defendant. No one saw the killing, nor does it appear how long the deceased had been killed when found. Thomas Griffin testified: "That between 12 and 1 o'clock he found some one dead on the railroad [proved to be deceased]. He was lying across the track, with one hand cut off on one side, and one foot on the other. *** Saw a train pass that night about two hours before I saw Cox. I was about 200 yards from it, I guess. The train was running backward when I saw it. It made no stop. At the time when I saw the train, it was on the Norfolk & Carolina Railroad. It was on the Y the last time. Heard no bell or whistle. The moon was shining bright." James Sills testified that "Tom reported to Massey, the night operator, that he had found a dead body on the road. We went and examined, and found it was Cox. He was lying cater-cornered across the Railroad, one side of his face torn, his skull crushed, one of his hands cut off. His hat was lying on the right-hand side of the switch, and his foot was lying crushed off, and one of his legs was broken. The roads run pretty near together up there. The switch goes from the Norfolk & Carolina to the Wilmington & Weldon. There is a public footpath there. It was the old county road. It goes right by my store from the main road across the W. & W. Railroad. It goes out into the main road. Most people travelling afoot go on that road. Cox could not go out of town anyway without crossing a railroad. This was the usual path to his house,--the path he always walked. No obstructions nor anything from the Railroad in the way of the path. A person could easily be seen that night on the Railroad near the path from the depot. It was a moonlight night,--a bright moonlight night. Heard no noise, signals, nor anything of that kind. Heard no bell or whistle." P. E. Smith, admitted to be an expert engineer, testified: "It was 250 feet from the depot to where he was found. This was about 10 feet from path. That there was no obstruction between depot and point opposite depot to this road and path. There is a small cut in road, right opposite depot, but after that it is level all the way. Small tree between house and railroad; 24 feet from center of road to center of tree. House and tree would not interfere with view from train if any one was moving along the track by this switch. If I were looking out for a man, I could see him 100 yards ahead of me, on a bright, moonlight night. If a man was keeping a lookout, he could see a man on the track for 100 yards." The witness was asked: "Would the manner in which this road was curved around prevent you from seeing him?" The witness answered: "There is no obstruction in the view because the man is on a level. You can look across the track. You cannot look straight down, but you can look across." On the redirect examination, he stated that, "if the train were moving at a speed of 3 or 4 miles an hour, it could have been stopped in 15 feet; if 8 miles an hour, in double that distance." The plaintiff testified that the deceased was his brother, and he got some gentlemen on Monday night, and went out there, and "took a hand off my farm, about the size of my brother. Made him lie on the track. Went to about even with course of warehouse, and could see him while standing up. He lay down, and I could see him. The night was moonlight, and a little cloudy. *** The path was the old road at one time before the town was laid off into streets, and had been used by foot passengers ever since." R. M. Quidly testified that "he was in Hopgood that night. It was a clear, moon-light night. I saw train about 10 o'clock pass. Heard neither signal nor bell. I was...