Purnell v. Raleigh & G.R. Co.
| Decision Date | 12 April 1898 |
| Citation | 29 S.E. 953,122 N.C. 832 |
| Parties | PURNELL v. RALEIGH & G. R. CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Halifax county; Timberlake, Judge.
Action by W. G. Purnell, administrator, against the Raleigh & Gaston Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Acts 1897, c. 109, provides that defendant may move for a nonsuit when plaintiff has rested, and, if the motion is denied, may except, introduce his evidence, and, in case of judgment against him, have the benefit of his exception on appeal. Held, that where a motion for a nonsuit at the close of plaintiff's evidence was denied, and defendant excepted he was entitled to have the ruling reviewed on appeal although he offered evidence after the denial of the motion.
MacRae & Day, Thos. N. Hill, and J. B. Batchelor, for appellant.
R. O Burton, for appellee.
Plaintiff's intestate was run over and killed by a freight train of the defendant company, and this is an action for damages. There was evidence tending to show that defendant has and maintains a large shed, 275 feet long and 80 feet wide, in the thickly-settled and the business part of the town of Weldon; that under this shed there are as many as five railroad tracks, and the trains and cars of four different roads pass under and through this shed; that this shed was used as a depot for these different roads, where they received and discharged their passengers, and was a place of general resort for the inhabitants of the town and all other persons; that on the night of the 18th of October, 1895, about 9:30, when the passenger train of the Atlantic Coast Line (this being one of the roads that used and occupied the shed) was leaving, the defendant company backed a freight train under this shed, which ran over and killed the plaintiff's intestate; that it was dark under this shed, which was not lighted except from lamps of the Coast Line Hotel and the Coast Line mail and passenger train, composed principally of "sleepers," which gave little or no light, and which was between the hotel and the defendant's freight train that killed the intestate of plaintiff, and such light as was reflected from some buildings across the street on the opposite side of the shed from the Coast Line Hotel; that defendant's train was due at 5:30, but was belated until 9:30, and was being pushed backward at a speed of not more than four miles an hour, and the intestate had been on the track but a few minutes when he was run over and killed. The plaintiff contended that there was no light or lantern displayed from the front end of the leading car of the backing train, and that there was no one there acting as flagman or signalman, in charge of the backing train, as there should have been. For the purpose of proving these allegations, the plaintiff introduced several witnesses, who testified that they were there; that it was dark. Some of them say it was very dark, and they saw no light, nor did they see any one on the car with a light or lantern. With this evidence, the plaintiff rested his case, and the defendant moved to nonsuit him, under chapter 109, Acts 1897, contending that the plaintiff had not made a prima facie case; that, taking everything to be true, the plaintiff's evidence proved or tended to prove that plaintiff had failed to show negligence on the part of defendant. The court refused the motion to dismiss, and the defendant excepted, and then proceeded to introduce evidence, and the trial proceeded to verdict and judgment against the defendant.
The defendant contends now that the judge erred in not dismissing the plaintiff's action at the conclusion of this evidence in chief, and insists that he is entitled to have the court reviewed upon that motion. The plaintiff contended that the court committed no error; that he is not so entitled; and this brings the construction of this statute before us for the first time. As we understand the practice of the courts 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 offered in the case. Sugg v. Watson, 101 N.C. 191, 7 S.E. 709. To give this statute the construction contended for by the plaintiff would be to make it meaningless, and to leave the law as it was before its passage. This we cannot do. Whether its enforcement will tend to the advancement of justice or to the economy of time is not for us to say. The rule it has changed is one of long standing, with the approval of this court. But it was within the province of the legislature to change it, and, in our opinion, it has done so. We must therefore hold that the defendant has the right to have the ruling of the court reviewed upon the state of the case as it existed at the time the motion was made.
This brings us to a review of the judge's ruling in refusing the defendant's motion to dismiss the plaintiff's action at the close of his evidence in chief. This motion is substantially a demurrer to the plaintiff's evidence. And this being so, and the court having no right to pass upon the weight of evidence, every fact that plaintiff's evidence proved or tended to prove must be taken by the court to be proved. It must be taken in the strongest light, as against the defendant. Then the plaintiff's evidence proved or tended to prove that the defendant kept and used a shed 275 feet long and 80 feet wide, under which there were five railroad tracks, used in common by defendant with three other railroads; that this shed was the depot for all these roads in receiving and discharging their passengers; that it was not lighted by the defendant, and that it was dark under this shed; that it was a place of common resort for the inhabitants of the town and all other persons; that there was a frequented pass way across the railroad tracks under this shed, which was used with the knowledge and consent of the defendant; that defendant's train that killed the intestate of plaintiff was not on schedule time,--was due at 5:30, but did not arrive until 9:30, when the intestate was killed; that this train was backing under this dark shed at a rate of speed not greater than four miles an hour, without light or flagman or signalman on the front of the leading car of the backing train. It is true that it was contended by the defendant that plaintiff's evidence failed to prove--to establish--the fact that there was no light and no flagman on the front of the leading car; that plaintiff's witnesses only testified that they were there, that it was dark, and they saw no light or flagman. This was negative, but competent, evidence. Henderson v. Crouse, 52 N.C. 623. This evidence was competent, and was not objected to. It was evidently introduced for the purpose of showing--proving--that defendant had no light or flagman on the car. If it did not prove this, nor tend to prove it, it was incompetent, and should have been objected to by defendant. But, if it tended to establish the fact, could the court say that it did not do so? If it did tend to do so,--and this proposition seems too plain to call for authority or argument,--it was then no longer a question for the court, but an issue for the jury. The court has no right to pass upon the weight of evidence. Sugg v. Watson, supra. We have not, and do not say that the evidence introduced by plaintiff, established negligence in the defendant.
It is not necessary, in the consideration of the judge's ruling upon defendant's motion to dismiss, that we should do so. But we say the evidence tends to establish the facts as we have stated them, and it then became an issue of fact for the jury, and not a question for the court. There was no error in refusing defendant's motion to dismiss under the act of 1897.
The discussion of this case so far has been as to the duty of the court under Acts 1897, c. 109. The discussion has involved the question as to defendant's negligence. But the question as to whether the plaintiff's intestate was guilty of negligence or not has in no wise been discussed. We have seen that there was evidence tending to show negligence on the part of defendant at the close of the plaintiff's evidence; and it is insisted by plaintiff that there was much more going to show defendant's negligence at the final close of the evidence than there was at the time the defendant moved to dismiss under the act of 1897. The burden of the issue as to defendant's negligence was on the plaintiff. But, whenever the evidence tended to show negligence on the part of the defendant, it then became an issue to be found by the jury under proper instructions from the court. The jury has found this issue against the defendant, and it must stand unless there has been improper evidence allowed to the prejudice of defendant, or the court has given the jury improper instructions, or has failed to give proper instructions asked by defendant.
The burden of establishing the second issue, "Did the negligence of the plaintiff contribute to cause the injury?" was upon the defendant. The jury has found this issue against the defendant, and it must stand unless the court has committed error in the charge or in admitting or refusing evidence. The prayers of defendant for instructions and exceptions to the charge and for failing to give instructions asked, are so numerous--many of them involving the same questions of law--that we will not undertake to give each a separate treatment. This fact is recognized by the learned counsel for defendant in their well considered brief, as they only...
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