130 N.C. 313 | N.C. | 1902
Lead Opinion
Defendant company delivered at Washington, upon its track at tbe wbarf, a carload of coal consigned to the Stryon Transportation Company. According to tbe agreement between them, it was the duty of the' consignee to unload tbe coal from tbe car. Plaintiff’s- intestate was employed by tbe consignee to unload tbe coal, and, while undertaking to do so, fell into tbe river and was drowned, on account of which this action was instituted.
The contention of plaintiff is that defendant company wag-negligent in tbe construction of its premises provided for delivering this freight, and in leaving an open space between tbe car and platform two or three feet wide over tbe water of tbe river, and in covering said space with an apron made of cedar-hearted, or unsound, timber, and while her intestate was using said apron by standing thereon, in unloading coal from tbe car, it broke, and intestate fell through into tbe water and was drowned; or that, if not using tbe apron to stand upon, be slipped and fell on tbe same., which, by reason of its unsoundness, broke, and be fell through into tbe water and was drowned. Defendant, after denying its negligence, avers in its answer “that tbe death of intestate was not caused by any negligence of defendant, but was caused by tbe negligence and fault of plaintiff’s intestate himself,” and insists and relies upon its plea of contributory negligence.
There were three issues submitted to tbe jury: “1. Did
Of the thirty-eight exceptions taken by plaintiff, those which relate to the negligence of defendant company and to the damages are not material to this decision.
The evidence relating to the accident shows that intestate, when last seen alive, was upon the car of coal throwing off lump coal with his hands upon the platform; and a few minutes thereafter he was missed, search made and his body found in the water. When taken from the water, his body was still warm, and bruises were found upon his left knee, shoulder, back of his head and about his right eye. Upon the side of the coal-car, about six inches from the top; were found finger prints of both hands ranging straight down, and the print of the toe or heel of a shoe near the finger prints. The prints raked about one-half way down the side of the car, or a little more. The “scrape took the paint of,” and the apron was broken, immediately below the finger and toe (or heel) prints. The apron was made of planks an inch or an inch and a half thick, sixteen feet long, and nailed together with battens across the underside, and was fastened to the platform with hinges and folded over, so that the other side rested against the coal-car; and the breaks in the planks revealed their unsoundness. This apron had been used to keep- the coal from falling through into the water, and also by the laborers in standing upon while engaged in unloading coal. It was covered over with coal dust, and had been in use three or four months, so that if any defect existed in its make or material it was not apparent. Defendant contends that plaintiff, not
The evidence as to intestate’s general condition, as well as 'that relating to- his condition on the morning of the accident* is very conflicting. That introduced by plaintiff tends to show that he was a sober, energetic, industrious, able-bodied laborer and good provider for his family, and that he was sober at the time he went to the car to unload it; while that of defendant tends to show that he was a bar-room loafer, rarely ever sober, a chronic drunkard, and was so drunk when he started to the car, 15 or 30 minutes before he was found drowned, that he could not walk straight, but staggered as he went along; that he took a “short” in Dudley’s bar, and went out and then came back and took another “short,” and after taking the second one, his son treated him to another; that he bought a half pint of whiskey at Simmons’ bar and drank about half of it, and put the balance in a bottle.
The second exception (which also covered exceptions 4, 5, 8 and 14) is to the exclusion of evidence; Plaintiff proposed to ask the witness “If this plank of the apron had been sound and not cedar-hearted or rotten, could a man of Cog-dell’s weight and size have stood upon it with safety and thrown off the lump coal, or fallen on it from the top of the car without its breaking under him?” This question was directed to the inquiry as to the negligence of defendant company in providing an unsound and unsafe apron, and is immaterial to this decision, since the jury found that issue in favor of plaintiff. It could not relate to the alleged contributory negligence or assumption of risk by intestate, because
Exceptions 3, 7, 12 and 13 are taken to the exclusion of • evidence offered to show for what purpose the apron was
Whether intestate’s death resulted from his own negligence in going upon the coal-car after becoming so drunk that he* could not take care of himself, was a question for the jury to determine upon thei evidence submitted, and the burden of proving, the same is imposed hy law (Acts 1887, Chap. 33) upon the defendant. There was evidence, if believed by the jury, to establish such negligence. But plaintiff insists that the plea of contributory negligence was not raised by the answer, and the second issue should not have been submitted to the jury, which was ruled against her, to which she excepted. (Exception 17.) We think his Honor properly submitted such issue.
In its answer, defendant avers “that the death of intestate was not caused by any negligence of defendant, but was caused by the negligence and fault of plaintiff’s intestate himself.” This is a strict compliance with the statute (Acts 1887, Chap. 33), and put plaintiff upon notice as to that defense, as fully appears from the fact of her being prepared with evidence to meet the charge of going upon the car in a drunken condition. However, if plaintiff had not anticipated, and could not with reasonable certainty have anticipated the defense, it would have been proper for the Court,
Exceptions 15 and 16 are taken to the admission by the Court of the testimony of Dr. Nicholson and Cordon, in contradiction of plaintiff’s witness Nelson. Upon the trial, Nelson testified that he saw intestate when he was upon the car, and that he seemed to be sober • and to impeach him, Dr. Nicholson and Cordon were introduced to show that Nelson told them that Oogdell was so- drunk he looked curiously out of his eyes on the morning of the accident. Dr. Nicholson testified that he reduced to writing and read over to Nelson that which Nelson told him concerning intestate’s condition, and, after hearing it read, said it (the statement) was all right, but did not sign it. And Cordon testified that he wrote down what Nelson told him to the same effect. His Honor permitted the witnesses to' testify from their recollection, and allowed them to refresh their memories from the writings. Plaintiff insisted that the written statements should be introduced as the best evidence, and objected to' the oral testimony. We think his Honor properly excluded the writings or memoranda, and allowed the witnesses to testify from their recollections thus refreshed. The writings, or written statements, were not signed by Nelson; they were simply declara tions made by them, and being hearsay could serve no purpose except as memoranda from which it was permissible for them to refresh their memories.
The record fails to show any evidence that intestate used the apron to stand upon, or that he used it in any way, or that it was needful or useful for any purposes other than to prevent coal from falling overboard and for laborers to stand upon. Therefore, it is not necessary to' discuss the charge or prayers for instruction, concerning its use or the as^ sumption of risk by intestate with reference to it. No defect
Defendant contends that intestate’s death was caused by his own negligence in going upon the car of coal in an intoxicated condition, by reason of which he was unable to- maintain himself upon the car and fell off upon the apron and broke through into the river, which resulted in his death, and his negligence being concurrent with its, plaintiff can not recover. Relating to the charge of his Honor upon this contention (and his refusal to give instructions prayed for), we fail ta find any error. The substance of the charge upon this phase of the case is contained in the following part thereof: “If the jury should believe from the evidence that Cogdell was intoxicated and fell from the car, then his condition would not necessarily affect plaintiff’s’ right to recover in this case, unless such intoxication substantially and essentially contributed to his death. Intoxication is not negligence of itself, but is only evidence of negligence. * * * If deceased voluntarily drank liquor and thereby became intoxicated so that his usual faculties were temporarily impaired, or his capacity to perform his ordinary work with safety was impaired, then such condition was due to himself, and if injured by reason thereof it would be negligence. If the deceased voluntarily incapacitated himself from exercising ordinary care by drinking liquor, and while in this condition got on the coal car for the purpose of unloading the same, and by reason of his intoxicated condition fell off the car, you will find that the deceased was negligent and contributed to his own death; and you will answer the second issue ‘Yes.’ That the evidence in this case does not present any element of the ‘last clear chance’ on the part of the defendant to have prevented
Plaintiff requested Ms Honor to charge the jury “That the law presumes that a person found dead and killed by the alleged negligence of another has exercised due care himself.” Which was refused, but in lieu thereof his Honor charged “that an inference arises from the instinct of self-preservation that a person killed has exercised due care himself,” to which plaintiff excepted. (Exception 38.) Also-, “that if the deceased did not know, or could not have discovered by ordinary inspection, that the apron was constructed of unsound planks, and if apparently it was strong enough to bear his weight, if he fell from the car, and to roll him off on the platform, then it would’ not be contributory negligence foi; him to have gone on top- of the car to unload it, or to have fallen therefrom. The deceased was not required to know an unseen and hidden defect in the apron not discernible by ordinary inspection.” This prayer his Honor gave, but inserted after the word “therefrom” and “the,” “unless the fall was the result of want of care.” To which insertion or modification the plaintiff excepted. (Exceptions 21 and 34.) Plaintiff further asked the Court to charge that “If the jury should believe, from the evidence, that deceased was intoxicated, and by reason thereof fell from the car on the apron, and that the apron would have sustained his weight and rolled him upon the platform if it had been built of sound material, and the deceased did not know of such unsoundness, and could not by reasonable inspection have discovered the same, then his intoxication and his fall from the car would not be the proximate cause of his death, but the proximate cause would be the defective apron,” which was also refused and excepted to. (Exception 34.)
The exceptions taken above can not be sustained. It is contended with great zeal that his Honor erred in refusing to
Tailing to find any substantial error prejudicial to the plaintiff, the judgment of the Court below must be
Affirmed.
Dissenting Opinion
dissenting.
This case is before us the second time, having been reported in 124 N. C., 302.
As the jury has found the defendant guilty of negligence, and the defendant has not appealed, we need not consider that phase of the case.
The contributory negligence of the intestate, with the evidence bearing thereon and the instructions relating thereto, is alone before us. The general construction of The wharf, platform and apron not set out in the former opinion.
The witness Langley testified that he was familiar with the locality, having worked there at one time, and that he went there immediately after the accident. He then fully described the condition of the apron; how it was constructed
He was then asked by the plaintiff: “If this plank of the apron had been sound, and not cedar-hearted or rotten, could a man of Cogdell’s weight and size have stood on it with safety and thrown off the lump coal or fallen on it from the top of the car without its breaking under him ?” This question was excluded upon objection of the defendant. In such-exclusion I think there was error. The plain object of the question was to show that it Was not contributory negligence for a man of ordinary prudence to trust his weight to an apron which would have been entirely safe but for a hidden defect which he had no means of ascertaining. This is not expert testimony. It is the conclusion of the witness as to a matter of common knowledge; based upon facts within his personal observation immediately after the accident. Therefore, I think it comes within the rule laid down in State v. Reitz, 83 N. C., 634, where this Court, by Ashe, T., says: “The first exception to the admissibility of evidence was to the admission of the testimony of a witness who testified it was his best opinion that certain tracks found near the site of the burnt building were those of the prisoner. The reception of this evidence was objected to on the ground that the witness was not an expert. It is not necessary that a witness should be an expert to testify to the identification of tracks. The correspondence between boots and footprints is a matter requiring no peculiar knowledge to- judge of, and as to which any person who has seen both may testify. His testimony in such a case can amount to nothing more than his opinion
In the case at bar, the safety of the apron was not the essential fact at issue, but was in the nature of a circumstance or relative fact, tending to prove or disprove the principal] fact of contributory negligence. 1 G-reenleaf Ev., Secs. 440, 440a. Of the same general nature was the defendant’s testi
The general rule is that the opinions of witnesses are not admissible, bnt there are many exceptions to this rule, both as to expert and non-expert testimony, arising from necessity and the increasing tendency of modern Courts to keep in view rather the ascertainment of the truth than the mere exclusion of error in the admission of evidence.
A non-expert witness was permitted to give his opinion ir» the following cases, among others: As to insanity, in Clary v. Clary, 24 N. C., 78; Barker v. Pope, 91 N. C., 165; McRae, v. Malloy, 93 N. C., 154; State v. Coley, 114 N. C., 879; Smith v. Smith, 117 N. C., 326. As to the presence of negro, blood, in Hopkins v. Bowers, 111 N. C., 175; Hare v, Bd. Education, 113 N. C., 9. Under* tire circumstances of this case, I think the question was competent.
There are a large number of exceptions; the' majority of which refer to the first and third issues, and are therefore not essential. Of those referring to the second issue, some come under the rule herein laid down and are governed thereby; of the others, many may not occur on a second trial, and need not be now discussed.
I think that the issue as to contributory negligence was properly submitted; but there is one exception to the charge, relating thereto that should be sustained.
The plaintiff requested the Court to charge: “That the law presumes that a person found dead and killed by the alleged negligence of another, has exercised due care himself.” This instruction should have been substantially given, but was refused. In lieu thereof, the Court charged as follows: “An inference arises from the instinct of self-preservation
Whatever doubt may have formerly existed as to the burder! of proving contributory negligence, was completely settled by Chapter 33 of the Public Laws of 1887, of which Section 1 is as follows: “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.” This act, which is generally regarded as having been caused by the decision of this Court in Owen’s case, 88 N. C., 502, lays down the law as followed by the Courts of the United States, of England, and of thirty-five out of the forty-five States of the Union. Shear, and Red. Neg. (5th Ed.), See. 109; Thompson Neg., 1176; Thompson Car. of Pas., 257, et seep; Wharton Neg., Sec. 423; Redfield on Railways, Sec. 253, and notes; Prideaux v. City, 43 Wis., 513; 28 Am. Rep., 563, Browne’s Note; 62 Am. Dec., Freeman’s Note.
In Cox v. Railroad, 123 N. C., 604, 610, this Court says: “The negative presumption necessarily accompanies the burden, and remains until the burden is lifted or shifted by direct admissions or a preponderance of proof.”
In Norton v. Railroad, 122 N. C., 910, 928, this Court says: “There is never any presumption, of contributory negligence, as self-preservation is the first instinct of humanity. Where there is no evidence of the fact, the presumption is against contributory negligence, even in the absence of any statute like our own, making it a matter of affirmative defense.”
In Texas, etc., Ry. v. Gentry, 163 U. S., 353, the Supreme Court of the United States says, on page 366 : “As already stated, no one personally witnessed the crossing of the track by the deceased, nor the running of the flat car over him. Whether he did) or did not stop*, and look, and listen for ap--proaching trains, the jury.could not tell from the evidence. The presumption is that he did ” citing Continental Imp. Co. v. Stead, 95 U. S., 161, 164, and B. and O. Railroad v. Griffith, 159 U. S,, 603, 609.
In Railroad v. Chisholm, 83 Fed. Rep., 652, the Court (U. S. Circuit Court of Appeals) says, on page 656: “The law does not presume negligence, but it presumes, until the contrary is shown, that everyone in a given situation will act, and lias acted, prudently, and with a due regard for his own safety.”
In Schum v. Pa. Ry., 107 Pa. St. 8, 52 Am. Rep., 468, the Court says, on page 12: “The common law presumption is that everyone does his duty until the contrary is proved, and in the absence of all evidence on the subject, the presumption
In Crumpley v. Ry. Co., 111 Mo., 152, the Court says, on page 158: “Contributory negligence is an affirmative defense, which the party alleging it is required to prove; and in this case the burden was on defendant to show that deceased did not exercise care. In the absence of proof to. the contrary the presumption is that he was at the tim'e in the exercise of care and diligence.”
In Smith v. Railroad, 4 South Dakota, 71, the Court says: “In the absence, therefore, of any evidence upon the subject, it would be the duty of the Court to assume that the plaintiff was not guilty of contributory negligence.”
In McBride v. Railroad Co., 19 Ore., 64, the Court says, on page 58: “In the case at bar, no witness was called who saw the occurrence. There is no evidence whatever whether the decedent in fact 'did stopi and look and listen. The presumption is that he did; proof of that fact was no part of the plaintiff’s case.”
In Mynning v. Railroad Co., 64 Mich., 93, 8 Am. St. Rep., 804, the Court says, oru page 102: "The presumption of law is that the person killed at a crossing did stop; and look and listen, and will prevail in the absence of direct testimony on the subject.”
It will appear from] the above quotations, each taken from a different State, and representing a line of authorities, that there is a uniform legal presumption, not only that the decedent was not guilty of any active negligence, but also that he took all the precautions for his own safety required by law.
This presumption is rebuttable', but, as was said in Cox v. Railroad, supra, it “remains until the burden is lifted or shifted by direct admissions or a preponderance of proof.” There was clearly error in the Court below refusing to give I he instruction as requested by the plaintiff.
There is another serious error in the opinion of the Court. It practically admits that the plaintiff was entitled to his prayer as to the presumption of due care on the part of the intestate, but intimates that this has become an abstract proposition, because the Statute of 1887 expressly imposes the burden of proof of contributory negligence upon the defendant. It clearly seems to: me that the statute! is an additional reason why the prayer should have been given. Again, the Court seems to hold that because the record states inferen-ti ally that the Judge below “stated the rule as to the burden of proof” that there is- a presumption that he stated it correctly, and that this presumption cures all exceptions to his refusal to' give prayers which are ini themselves correct. In other words, the Judge below, can, in his discretion, properly refuse all prayers and justify such refusal upon the bare statement in the record that he had “stated the rule,^ or “properly charged” upon the points raised by such prayers. This rule would practically destroy the value of an appeal, as it would t'ate away from) this Court the power of passing upon the essential question. When there is an exception to the charge, or the refusal to charge, of the Court below, it is for this Court to say whether there is error; and when a material prayer is refused, it must appear to us affirmatively from the record, either that such prayer was ini itself erroneous, or that it was substantially given in the charge. This has been expressly decided.
The Court seems to tahe it for granted1 the jury found the issue of contributory negligence on the ^ ground of intoxication. Where have the jury said so ? Not in their verdict, for they found simply that the deceased was guilty of contributory negligence. This finding may have been based upon the deceased standing upon an apron that was not intended
I can not concur in the opinion of the Court.