Young v. Wilmington & W. R. Co

• Decision Date: 12 March 1895
• Court: North Carolina Supreme Court
• Parties: YOUNG . v. WILMINGTON & W. R. CO.

21 S.E. 177

116 N.C. 932

YOUNG .

v.WILMINGTON & W. R. CO.

Supreme Court of North Carolina.

March 12, 1895.

Warehouseman—Negligence—Evidence.

In an action against a railroad company to recover for goods burned in its warehouse, evidence that a night telegraph operator, who worked in the warehouse, and slept therein, was an habitual drunkard, and was drunk at the time of the fire, does not justify a verdict for plaintiff.

Appeal from superior court, Harnett county; Bynum, Judge.

Action by E. P. Young against the Wilmington & Weldon Railroad Company to recover damages for goods destroyed by fire in defendant's warehouse at Dunn, N. C. The plaintiff sought to establish the charge of negligence on the part of the defendant by evidence showing that one of the latter's employes, a night operator, who had charge of the telegraph office in the warehouse, was addicted to drinking, and was drunk at the time of the fire. Upon the ruling of the court that the evidence was not sufficient to justify a recovery, plaintiff submitted to a nonsuit, and appeals. Affirmed.

F. P. Jones, for appellant.

Junius Davis, for appellee.

FAIRCLOTH, C. J. At the close of plaintiff's evidence, his honor was of opinion that he was not entitled to recover, and a nonsuit was taken, and an appeal granted. Atthe time of the fire, the defendant was not liable as a common carrier, but was only liable for want of ordinary care as a warehouseman. Hilliard v. Railroad Co., 6 Jones (N. C.) 343. The plaintiff was required to prove the negligence as a part of his case. Kahn v. Railroad Co., 115 N. C. 638, 20 S. E. 169. We think his honor properly held that the evidence was insufficient to justify the jury in rendering a verdict for plaintiff. Judges are no longer required to submit a case to the jury merely because some evidence has been introduced by the party having the burden of proof, unless the evidence be of such a character that it would warrant the jury to proceed in finding a verdict in favor of the party introducing such evidence. There is, or may be, in every case a preliminary question for the judge, not whether there is absolutely no evidence, but whether there is more than a scintilla of evidence, upon which a jury can properly proceed to find a verdict for the party introducing it, upon whom the burden of proof is imposed. Commissioners v. Clark, 94 U. S. 278; Ryder v. Wombwell, L. R. 4 Exch. 39; Wittkowsky v. Wasson, 71 N. C. 451.

Affirmed.