45 S.E. 347 | N.C. | 1903
This was an action for negligently killing a horse. At the close of the evidence the defendant moved to nonsuit the plaintiff. The action was brought within six months, and the killing having been shown, the statute raised a presumption of negligence, and the burden to rebut such presumption being upon the defendant, the judge could not find affirmatively that the defendant's evidence had been sufficient to do this. That was a matter for the jury.
The judge could instruct the jury, as he did in this case, that a certain state of facts, if believed by them, would rebut the presumption, but not that certain evidence, though uncontradicted, would do so. The burden is on the defendant to rebut the presumption, and the jury alone can pass on its credibility; otherwise, if the only eye-witness is witness for the defendant, the plaintiff would be at his mercy, and would be deprived altogether of the benefit of the statute, because he did not happen to see the killing. It would be a novelty to nonsuit the plaintiff on the defendant's evidence.
The statute, The Code, sec. 2326, originally enacted in 1856, is clear and unambiguous: "When any cattle or other live stock shall be killed or injured by the engines or cars running upon any railroad, it shall be primafacie evidence of negligence on the part of the company in any action for damages against such company," with a proviso that the plaintiff cannot have "the benefit of this section" unless the action is brought within six months.
The defendant relies upon an expression in the opinion in Doggett v. R.R.,
Furthermore, this expression in the Doggett case has been recently and authoritatively construed and explained (or overruled, as it may be considered) in Hardison v. R. R.,
Hardison's case is approved by a unanimous Court, the above paragraph being quoted verbatim and approved in Hunter v. Tel. Co., 130 N.C. top of page 609. To same purport are all the older cases, Pippin v. R. R.,
In fact, the statute is too explicit to admit of more than one construction, and has been adopted in many other States. 2 S. and R. on Neg., sec. 432. In this very case the defendant itself requested and the court charged: "If the defendant's engineer and fireman were keeping a proper lookout, and the horse suddenly ran to the train, and the fireman looked and saw him and at once notified the engineer, and before the engineer had time to apply the brakes, and the train was properly equipped, the horse was stricken, and the engineer could not have prevented it under all the circumstances, then the defendant has rebutted the statutorypresumption of defendant's negligence, and in the absence of other negligence on the part of the defendant the jury should find the issue as to negligence `No'."
There was evidence that the horse ran along the track 120 to 165 feet before he was struck, and other evidence by reason of which the jury did not find that the presumption of negligence was rebutted.
(35) There are other exceptions, but they are without merit and require no discussion. It was agreed that if the plaintiff could recover, the measure of damages was $55. We find
No error.
Cited: Davis v. R. R.,