Ferrell v. Norfolk Southern R. Co.

• Decision Date: 16 September 1925
• Docket Number: 22.
• Citation: 129 S.E. 155,190 N.C. 126
• Parties: FERRELL v. NORFOLK SOUTHERN R. CO.
• Court: North Carolina Supreme Court

129 S.E. 155

190 N.C. 126

FERRELL v. NORFOLK SOUTHERN R. CO.

No. 22.

Supreme Court of North Carolina

September 16, 1925

Appeal from Superior Court, Currituck County; Cranmer, Judge.

Action by G. E. Ferrell against the Norfolk Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Partial new trial ordered.

Instruction on burden of proof under statute making killing of cattle "prima facie evidence" of negligence held error.

Civil action to recover damages for the negligent injury and killing of plaintiff's live stock and turkeys by defendant's engines and cars. Damages amounting to $262.50 were awarded for animals killed more than six months prior to the institution of the action, and $44.50 for animals killed within six months next immediately preceding the institution of the action. C. S. § 3482.

Judgment on the verdict for plaintiff, from which defendant appeals assigning errors.

Thompson & Wilson, of Elizabeth City, for appellant.

W. L Small, of Elizabeth City, for appellee.

STACY C.J.

There is no error appearing on the record with respect to the damages awarded for plaintiff's cattle, hogs, and turkeys injured or killed by the defendant's engines or cars more than six months prior to the institution of the action, but in regard to the amount awarded for live stock injured or killed within six months next immediately preceding the institution of the action, we think the trial court erred in charging the jury that, under C. S. § 3482, "there is a presumption of negligence, and the burden is on the railroad company to rebut the presumption." The language of the statute is as follows:

"When any cattle or other live stock shall be killed or injured by the engine or cars running upon any railroad, it shall be prima facie evidence of negligence on the part of the railroad company in any action for damages against such company: Provided, that no person shall be allowed the benefit of this section unless he shall bring his action within six months after his cause of action shall have accrued."

True in some of the earlier decisions on the subject, it was said that when suit for damage or injury to cattle or other live stock, occasioned by the engines or cars of a railroad company, was brought within six months after plaintiff's cause of action accrued, this statute raised a presumption of negligence, and cast upon the defendant the burden of rebutting such presumption (Bethea v. Railroad, 106 N.C. 279, 10 S.E. 1045; Carlton v. Railroad, 104 N.C. 365, 10...