Powell v. Southern Ry. Co

• Decision Date: 05 December 1899
• Citation: 34 S.E. 530,125 N.C. 370
• Parties: POWELL. v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

34 S.E. 530

125 N.C. 370

POWELL.

v.SOUTHERN RY. CO.

Supreme Court of North Carolina.

Dec. 5, 1899.

RAILROADS—DEATH—NEGLIGENCE—NONSUIT— QUESTION FOR JURY.

1. Deceased, who was addicted to drink, was last seen alive at a store near defendant's depot at 12:05 a. m. He was afterwards found dead, about three or four feet from the end of the cross-ties of defendant's railroad, with his head lying east and his feet west, and there was blood on the grass and weeds. He had a wound on the back of his head, and his skull was crushed, producing wounds sufficient to cause death. The fingers of his right hand were torn, and his right shoulder bruised. His clothing was dusty. His hat was found between the cross-ties, daubed with grease, and it appeared to have been run over by a wheel. There was no evidence of a scuffle. His usual way home was along the railroad track towards a crossing, between which points he was found. Defendant's east-bound train passed along the track where deceased was found between 1 and 2 o'clock in the morning. Held to establish more than a scintilla of evidence showing that deceased was knocked off the track and killed by the train, and hence the determination of such fact was properly left to the jury.

2. Deceased was killed by being knocked off the right side of defendant's track by a train going at from 25 to 35 miles an hour. It was a moonlight night, and a man could have been seen 200 yards ahead of the engine, and with a proper lookout the headlight would have enabled the engineer, on the right side of an engine, to have seen a man sitting or lying down on the right side of the track. No whistle was sounded for a station 300 yards west of where deceased was found, nor for a crossing 100 yards east, both of which were within an incorporated town; and the engineer did not know that his engine had killed deceased until two days thereafter. Held sufficient evidence of the railroad's negligence to take the case to the jury.

3. Contributory negligence, being an affirmative defense, cannot be considered on a motion for a nonsuit at the close of plaintiff's main case.

Appeal from superior court, Burke county; Bowman, Judge.

Action by W. Powell, administrator, etc., against the Southern Railway Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

G. F. Bason, for appellant.

Avery & Ervin and W. S. Pearson, for appellee.

CLARK, J. There is no exception to evidence or the charge. The sole exception is that the court refused the defendant's motion to withdraw the case from the jury on the ground that there was no evidence. As the constitution guaranties the right of trial by a jury of disputed issues of fact, if there is any evidence which in any reasonable aspect would support the verdict the cause must be submitted to the triors of fact, subject to the discretion of the judge to set the verdict aside if, in his opinion, not justified by the evidence. Dunn v. Railroad Co., 124 N. C. 252, 32 S. E. 711; Cox v. Railroad Co., 123 N. C. 606, 31 S. E. 848; Fulp v. Railroad Co., 120 N. C. 525, 27 S. E. 74; State v. Green, 117 N. C. 695, 23 S. E. 98; State v. Kiger, 115 N. C. 746, 751, 20 S. E. 456. In considering a motion to take a cause away from the jury upon the ground that there is no evidence, only the evidence favorable to the plaintiff must be considered, and that in the light most favorable to him. Purnell v. Railroad Co., 122 N. C. 832, 29 S. E. 953. The defendant contends:

1. That there was no evidence that the plaintiff's intestate was killed by defendant's train. There was no eyewitness who saw the killing, but it was in evidence that the deceased was seen at a store near the defendant's depot in Morganton at 9 o'clock at night, and again at 5 minutes past 12, and the next morning he was found lying dead 300 yards east of the depot, and between it and Campbell's crossing, and about 100 yards from the latter. The deceased was lying on his back, and there was blood on the grass and weeds. His head was lying east, his feet west, about three or four feet from the end of the cross-ties. His clothes had dust on them. He had a wound on the back of his head; his skull was crushed, —wounds sufficient to cause death. Fingers of right hand torn, and right shoulder bruised. His hat was found between the cross-ties, and had grease on it, and looked like it had been run over by the wheel. There was no sign of scuffling on the ground. The intestate's usual way home was along the...