29 S.E. 377 | N.C. | 1898
This is an action brought by the plaintiff to recover damages for personal injuries alleged to have been caused by the negligence of the defendant. The plaintiff, a passenger on defendant's train, was carried past his destination and was injured by stepping off the train, while in motion, by the direction of the conductor, as alleged. After the close of the testimony, the court below refused all prayers for instructions offered by the plaintiff, and "stated that he would charge the jury that the plaintiff on his own testimony was not entitled to recover. Whereupon the plaintiff submitted to a nonsuit and appealed." This brings before us the single question whether there was sufficient evidence to go to the jury as to the negligence of the defendant. As upon this issue the burden was upon the plaintiff, the court might properly have directed a verdict in favor of the defendant, provided there was no evidence or nothing more than a mere scintilla tending to prove the negligence of the defendant. Wittkowsky v.Wasson,
In the present status of this case we can consider only the evidence of the plaintiff and such of the defendant's evidence as is favorable to him, and must construe both in the light most favorable to the plaintiff. Abernathy v. Stowe,
Among other things the plaintiff testified that he got on the train at Stokesland and paid his fare to Benaja, his destination; that the train did not stop at Benaja, and that as soon as he saw it was not going to stop he went back to see the conductor and found him in the first-class car. The plaintiff further testified as follows: "He (the conductor) jumped up and remarked that he had forgotten me, that he had to meet a train at Benaja, but at the same time he remarked that he was on a hill and could not stop, and suggested that I jump from the train as it was running slow. I refused. He suggested again that I jump, and I refused. He said he would slow up at the top of the hill, which was a safe place. I took him at his advice. As the train slowed up, (896) about as fast as a man could walk, I went out on the platform. I saw a signal at the rear end of the train; it was a signal to go ahead. I did not step off the train because I saw the lantern moving. At the same time I felt the increased motion of the train. I stepped off the train, thinking I was at a safe place. . . . I believed it to be a perfectly safe place. In fact the conductor had told me he would slow up at a safe place for me get off . . . . When he first told me to jump off the train was not making less than 15 miles an hour — as fast as it could go up-hill. . . . The conductor told me that he would slow up at a safe place on the top of the hill and for me to get off when the train slowed up. I relied on his picking a safe place for me to get off. I got off when the train became very slow — I suppose not faster than a *561 man could walk, probably not so fast." The plaintiff also testified as to his injuries, loss of income, and other matters.
Taken in its most favorable light, this evidence was unquestionably sufficient to go to the jury. The court could not consider the rebutting evidence of the defendant, no matter how strong in contradiction, because that would be to compare the conflicting evidence and determine its relative weight. This can never be done by the court, as it is within the exclusive province of the jury. S. v. Shule,
We have assumed that his Honor intended to charge the jury that there was no evidence tending to prove negligence on the part of the defendant, since, if the defendant's negligence were proved or admitted, under no circumstances could the court find as an (897) affirmative fact that there was contributory negligence. Contributory negligence is a plea in bar, the burden of which always rests upon the defendant, both as to allegation and proof. Any doubt that may have existed as to its character is now settled by chapter 33, Laws 1887, which provides "that in all actions to recover damages by reason of the negligence of the defendant, where contributory negligence is relied upon as a defense, it shall be set up in the answer and proved on the trial." InHardison v. R. R.,
In Bank v. School Committee,
The inference from the facts must be "so plain as to be a legal conclusion" before the question can be withdrawn from the jury. R. R. v.Egeland,
There is another point in the case at bar on which the plaintiff was clearly entitled to go to the jury. He testified without contradiction that he was on the train as a passenger, had paid his fare to Benaja, a regular station of the defendant company, and was carried beyond his destination by the failure of the conductor to stop his train. This of itself was negligence on the part of the defendant, and entitled the plaintiff to at least nominal damages. This is a well-settled rule of law, even in the absence of a local statute. Fetter Carriers of Passengers, secs. 66 and 300, and cases therein cited; Schouler Bailments *563
and Carriers, sec. 661; Thompson on Carriers of Passengers, page 581; Hutchinson on Carriers, secs. 612 and 614; Am. Eng. Enc. of Law, pages 565, 566, 572, and notes thereunder. In this State the liability is directly imposed by statute. The Code, sec. 1963, provides that "Every railroad corporation shall start and run their cars (900) for the transportation of passengers and property at regular times to be fixed by public notice, and shall furnish sufficient accommodation for the transportation of all such passengers and property as shall within a reasonable time previous thereto be offered for transportation at the place of starting, and the junction of other railroads, and atusual stopping places established for receiving and discharging way passengers and freights for that train, and shall take, transport, anddischarge such passengers and property at, from, and to such places on due payment of the freight or fare legally authorized therefor, and shall be liable to the party aggrieved in an action for damages for any neglect or refusal in the premises." As to the quantum of damages, the rule may be found in Purcell v. R. R.,
This Court does not favor the growing practice of taking cases from the jury. The jury is a constitutional body, as much so as the court itself, and, in the exercise of its peculiar powers, of equal responsibility and independence. Its members are selected on account of their peculiar fitness from the body of the people and by the lawful officers of the people. Any of its members can be challenged by any party for cause, and to a certain extent peremptorily, at the will of the objector. They represent the average intelligence and virtue of our people, and we cannot discredit them without at the same time reflecting upon the controlling element of our State. They may not possess the high order of intelligence and cultivation required of the judge, but as an average they do possess that common sense which gives a clearer insight into the motives and conduct of men, and is better fitted to deal with the ordinary affairs of life than the highest order of intellectual brilliancy. We should (901) remember that our organic law is not the product of John Locke, but is the outgrowth of the practical wisdom and experience of the hardy frontiersmen for whom he attempted in vain to legislate. The number of the jury is large, and they are required to render a unanimous verdict, because it is the consensus of their average judgment that the law seeks as the safest protection against prejudice and oppression. It is true that some of the "advanced thinkers" of the day attack the jury system as a cumbersome relic of the ignorance of the past; but in spite of their criticism it is not only imbedded in our organic law but remains of the very warp and woof of the jurisprudence of the two great English-speaking nations who today hold the world in awe. In the large *564
majority of cases where the court directs a verdict, if the matter were left to them under proper instructions, the jury would render a verdict in accordance with the views of the court, and that would be an end of the case. But, even if the jury should render a verdict against the weight of the evidence, no harm would be done beyond a brief delay, as the court could in its discretion set aside any verdict other than that of acquittal on a criminal charge. It would involve no greater responsibility to set aside a verdict than to direct one, and it is certainly more in accordance with the policy of our laws to recommit the case to a jury rather than to take it entirely from their consideration. This Court has said in Edwards v. Phifer,
These views are not new to this Court either in principle or application, but are again suggested by the increasing number of such cases. S. v. Allen, supra. We fully appreciate the difficulties experienced by our brethren upon the circuit in deciding, offhand, difficult and novel questions, and we make these suggestions in no captious spirit, but believing that their observance will tend to the easier and better administration of the law. A new trial must be ordered.
New trial.
Cited: Willis v. R. R., post, 908; Thomas v. Club,