40 S.E. 69 | N.C. | 1901
COOK, J., dissenting. This is an action for damages upon the allegation that the plaintiff's intestate was killed by the negligence of the defendant. The intestate was seen between 8 and 9 o'clock the night he was killed, in a drunken condition, lying on the ground near the defendant's railroad track, asleep. He was aroused from his sleep by some friends, who helped him up and upon his feet. These friends started him home, which was only a few hundred yards off, and went with him a part of the way, which was down the track of the railroad; and would have gone with him all the way home, but he objected, saying that he could take care of himself. This was near the corporate boundary line of the town of Kings Mountain, and the next morning he was found dead a short distance outside of the corporate limits. When found, he was lying lengthwise with the track of the road, on the end of the cross-ties outside of the rail, with the top of his head crushed, a hole torn in his jaw, his arm crushed above the elbow and severed from the body, except a little piece of skin, with grease on his hair, face and clothing. No one saw him killed so far as the evidence showed.
It was in evidence that the passenger train of the defendant passed over that road shortly after 11 o'clock the night the intestate was killed, going south and running at the rate of about 30 miles an hour. There was evidence that there were two crossings, one some fifty yards before reaching the place where the intestate was killed, and the other some three hundred yards further on. There was evidence tending to show that the whistle was not sounded, and that a man on the track where the intestate was killed could have been seen for two hundred and fifty yards, by reason of the headlight of the engine, if there had been a proper lookout.
There are but three exceptions: one is as to evidence, as follows: "Question — Do people walk along the track at that time?" This question was allowed over the objection of the *307 defendant, and defendant excepted, and was answered as follows: "Yes, sir; they walk there every day, the people from the mill." We can not sustain this exception. McCall v. Railroad, at this term.
The next exception is as follows: "(a) Inasmuch as it appears that the intestate was negligent, I charge you to answer the second issue `Yes,' unless you find that he was in a helpless condition, and the burden is on the plaintiff to satisfy you by a preponderance of the evidence that his intestate was in a helpless condition; but if you are so satisfied, you will answer the second issue `No' (b)."
The usual charge is, "If he is in an apparently helpless condition." But as the burden of showing this fact was upon the plaintiff, we do not see that the defendant has cause to complain — supposing there may be a shade of difference between them, and, if there is not, the charge of the Court is sustained by McCall v. Railroad, at this term, and authorities there cited. Brinkley v. Railroad,
The next exception is to the refusal of the Court to nonsuit the plaintiff at the close of the evidence; and this exception is grounded principally, as we understand, upon the fact that as the intestate was not found upon the track, it could not be presumed that he was killed by the defendant's train; and, further, as he was not found on the track of the road, it could not be inferred or presumed from the fact that he was killed, that the engineer was negligent in not seeing him and stopping the train. But this exception seems to be answered and the Court sustained byPowell v. Railroad,
Affirmed.
