84 S.E. 270 | N.C. | 1915
This action was brought to recover the value of a cow which plaintiff alleges was killed on the defendant's track by its negligence. The plaintiff testified for himself, that he found the cow on the right of way of the railroad company about two days after the injury. He then called as a witness the engineer of the defendant railroad company, who testified that on the night of 27 August, 1910, he was running an engine of the defendant railroad company; that it was very dark and raining; that the *315
railroad-bed was in good condition and that the engine was properly equipped with headlight and brakes, and was in good condition generally; that he was keeping a very careful lookout and saw (249) some cows on the track about a hundred yards ahead of him; that he was running at the time about 25 miles per hour; that as soon as he saw the cows he sounded the whistle and applied the brakes, and in fact did everything he could to keep from striking them, but that he did strike one cow and knocked her off the track; that it was impossible to stop the train sooner because of the slippery condition of the rails, due to the rain. The cow was killed 27 August, 1910, and this action was commenced 19 April, 1912. Plaintiff proposed to account for the delay in bringing his action by proving that some one who was connected with the defendant told him that a suit would not be necessary, but there was no proof, nor offer to prove, who made the statement, or, if it was made, that the person had any authority from the defendant to make it. The evidence was excluded, and the court, on motion, nonsuited the plaintiff, and he appealed.
after stating the facts: The judgment of the court was manifestly correct. There was no presumption or prima facie case of negligence, under the statute, Revisal, sec. 2645, as the action was not commenced within six months after the animal was killed, and it is provided therein that "no person shall be allowed the benefit of this section unless he shall bring his suit within six months after his cause of action shall have accrued." He offered no legal excuse for his delay in suing. That some one, without authority to represent the railroad, told him that an action would not be necessary, was no excuse. The defendant is not responsible for the statements or opinions of any one not authorized to speak for it. Besides, the plaintiff's delay continued for more than two years without any explanation. Why, if he was relying upon the statement of his informant, did he not press the matter to a conclusion sooner than he did, and if settlement was refused, then bring his suit? Excluding the presumption from consideration, as inapplicable, the case is brought directly within the decision in Seawell v. R. R.,
The statement of the unidentified person was not any evidence of negligence, and no more competent to prove it than it is to show a legal excuse for the delay. It was simply the expression of an opinion emanating from one not in privity with defendant and having no authority to bind it in any way, so far as appears. In one of its aspects — that is, as proof of negligence — it was the statement of a past transaction, and not a part of the res gestae, and for that reason doubly incompetent.Rumbough v. Improvement Co.,
The motion for a new trial, based upon the ground of newly discovered evidence, was addressed to the discretion of the judge, and, having been denied by him the decision is not reviewable here. Flowers v. Alford,
No error.
Cited: Sanford v. Junior Order,