23 S.E. 275 | N.C. | 1895
The exception to the ruling of the court that the witness Riddick had not qualified as an expert seemed to be relied on with more confidence than any one of the great number taken on the trial. After the court had found, upon objection of defendant, that on a previous preliminary examination the witness had not shown that he had the peculiar skill and knowledge which proved his fitness to testify as an expert, a re-examination elicited the following statement from him:
(646) That he was a professor of civil engineering and mathematics in the North Carolina College of Agriculture and Mechanic Arts; that he had made the subject of mechanics and of moving bodies a special study, that there are certain mathematical rules by which it can be ascertained how far moving bodies, such as trains, will go by their own momentum; that he was thoroughly acquainted with these rules and had applied them frequently, and that he thought in half an hour he could make a calculation by which he could ascertain the distance that this train would go at the place named, with the momentum described, and upon the grade as testified to by him. Witness said he had no actual experience in running railroad trains. He was not asked the question whether he could give an opinion satisfactory to himself. *447
The plaintiff thereupon renewed the following question: "If the jury should find that a train, as described by defendant's witnesses, was moving up the long grade and was traveling when it reached the top at the rate of 15 miles an hour, and they should find that the grade and the level of the road were as described by you, how far, according to the laws of moving bodies, would a train go by its own momentum?" The fireman and superintendent had testified that they had ascertained by actual experiment that it required little steam to carry the engine along the level track to the landing after passing the highest point of the upgrade. H. A. Page, an engineer, had testified that since the last trial of this case he had come over the top of the grade beyond Hicks' Landing (where, according to plaintiff's theory, the fire was started by sparks emitted from the engine) at a speed of 15 miles per hour, and had run from there to West End without more power than the momentum of the train. The question whether any or how much steam was used to propel the engine with the train over the level track after passing the highest point of the grade had become material because of the greater tendency to emit sparks from the engine when the power is increased. "The preliminary (647) question whether a witness, offered as an expert, has the necessary qualification is for the courts, and is largely discretionary with them" (1 Greenleaf E., sec. 440, note B), and "where there is any evidence of it the finding, like that of the jury, is not reviewable in this Court.S. v. Davis,
Conceding the fact that the substance of these rulings is as contended, and giving the plaintiff the full benefit of the deduction he *448
seeks to draw from them, the principle relied upon has no application to the case at bar. The Judge stated the testimony of the witness in full, doubtless, but set forth in detail no formal statement of the facts found by him. The court upon the testimony held that (648) the witness had not qualified himself as an expert, and in the absence of any statement to the contrary we must assume that this was his conclusion of fact. Whether he did not believe the witness at all, or whether he thought the witness was mistaken when he expressed the opinion that he could calculate with mathematical certainty how far a train which he had heard described by witnesses would move by the force of the momentum acquired at a speed of 15 miles per hour over a level surface, of which he had acquired acknowledge by observation and not by running or seeing a train run over it, and without regard to the condition of the track, it is not material that we should inquire. Courts are at liberty to instruct jurors that, while the opinions of learned experts upon questions as to which they have had opportunity to learn by observation, study and experience are not conclusive, they are entitled to peculiar weight.S. v. Owen,
The right of way of railway companies is by judgment of condemnation made subject to occupation where and only where the corporation finds it necessary to take actual possession in furtherance of the ends for which the company was created. The damages are not assessed upon the idea of a proposed actual dominion, occupation and perception of the profits of the whole right of way by the corporation, but the calculation is based upon the principle that possession and exclusive control will be asserted only over so much of the condemned territory as may be necessary for corporate purposes, such as additional tracks, ditches and houses to be used for stations and section hands. Unless the land is needed for some such use, the occupation and cultivation by the owner of the servient tenement will be disturbed only when it becomes necessary for the company to enter in order to remove something which endangers the safety of its passengers, or which might, if undisturbed, subject the owner to liability for injury to adjacent lands or property. Ward v. R. R.,
The jury were instructed in the first paragraph of the charge that it was the duty of defendant company to have its road properly equipped with modern appliances sufficient to guard against the escape of fire and to have the engine carefully operated by skillful and competent men. From a subsequent section of the instruction it appears that the court also told the jury that if they "were satisfied that the engine had modern appliances to guard against fire and that the same was manned by competent men and was carefully and skillfully operated at the time, in that event there would be no negligence in respect to the engine; and in such case, if fire originated from a spark from the engine and commenced beyond the right of way, the issue should be answered `No.'" Construing these detached portions of the charge *450 together, they were sufficient to enable the jury to understand what the duty of the defendant was, and that they must be "satisfied" that the duty had been performed before they could, by their response to the issue, acquit the defendant of carelessness. We think the charge placed the burden of satisfying the jury upon the defendant and applied the rule to the evidence as specifically as was necessary.
We understand that counsel finally abandoned the objection (651) to the instruction as to the character of appliances, but, however that may be, we think that when the Judge told the jury it was the duty of the defendant to furnish appliances which were sufficient to guard against the escape of fire, it was not material to the plaintiff whether they were approved by a majority or minority of people or railway managers. If it was the duty of the defendant to provide such as were sufficient for the purpose, it was not material when or on what pattern they were constructed, so that they afforded the desired protection. The defendant is not appealing, and there is no just ground of objection on the part of the plaintiff.
We do not deem it our duty to discuss in detail the 42 exceptions which appear in the record, nor some of the number which seem to be relied on by some of the counsel and not by others, where they appear to have no merit in them. There was no error, and the judgment is
Affirmed.
Cited: Smith v. Whitten, ante, 391; R. R. v. Sturgeon,
