Kearns v. RailroadKearns v. Railroad
- It is the duty of the judge to nonsuit, when the evidence is not legally sufficient to justify a verdict for the plaintiff.
- In an action for damages for an injury from a collision, evidence which merely shows that it was possible that the failure to stop the train caused the injury, or merely raises a conjecture that it was so, is legally insufficient and should not be submitted to the jury.
- In an action for damages for an injury from a collision, with defendant‘s train, the burden of proof was upon the plaintiff to show that the alleged negligence of the engineer in not stopping his train sooner than he did was not only the cause, but the proximate cause of the injury.
- Evidence that the plaintiff, driving his horse and buggy, crossed the defendant‘s track and after he had gotten across and when distant from 15 to 40 feet and about the time the engine passed the crossing, the horse began to back and continued backing and backed into the cars; that the engineman was looking out at the plaintiff and slackened the speed of the train, which was going very slowly and after plaintiff‘s buggy struck it stopped very quickly, in 15 feet of the crossing according to one witness, and within two or three car lengths according to the plaintiff, held, that the plaintiff failed to make out a case of actionable negligence.
Hoke, J., and Clark, C. J., dissenting.
“We would be recreant to our duties as judges were we to fail to declare the law with respect to the question whether there is any evidence for fear of offending the jury. This question the jury do not decide.” Connor, J., in State v. Smith, 136 N. C., at page 687.
Evidence has a twofold sufficiency, a sufficiency in law and a sufficiency in fact. Of the former, the court is the exclusive judge; of the latter, the jury is. The measure and quantity of proof is a question for the court. When submitted to the jury, its weight and sufficiency to establish a fact is for them.
An issue is made up of one or more facts. Where the evidence fails to establish all these facts, either directly or by
We agree with His Honor that the plaintiff in this action has failed to make out a case of actionable negligence. To establish actionable negligence the plaintiff must show by the greater weight of evidence, not only that the engineman was guilty of some negligent act, but also that such negligent act was the proximate cause of the injury. As clearly expressed by Mr. Justice Walker: “There must always, in actions of this kind, be a causal connection between the alleged act of negligence, and the injury which is supposed to have resulted therefrom. The fact that the defendant has been guilty of negligence, followed by an injury, does not make him liable for that injury, which is sought to be referred to the negligence, unless the connection of cause and effect is established, and the negligent act of the defendant must not only be the cause, but the proximate cause, of the injury.” Byrd v. Express Co. (at the present term).
The burden of proof is therefore upon this plaintiff to show that the alleged negligence of the engineman in not stopping his train sooner than he did was not only the cause, but the proximate cause of the injury. The law requires him to establish that fact by a clear preponderance of proof as much so as it does the fact of negligence. The proof must be of such strength and character as to warrant the inference that the failure to stop caused the injury, and not merely to raise a surmise or conjecture that such was the fact. Evidence which merely shows that it was possible that such was the result, or raises a conjecture that it was so, is legally insufficient, and should not be submitted to the jury. State v. Vinson, 63 N. C., 335; Brown v. Kinsey, 81 N. C., 245.
Applying these well settled principles, we have concluded that the plaintiff has failed to show that the alleged negligent act of the engineman in not stopping his train sooner than he did caused the injury, and therefore he cannot recover.
The facts, as gathered from the testimony of the plaintiff and his witness, Elliott, who alone testified as to the occurrence, are these: On August 17, 1902, plaintiff, driving his horse and top buggy, crossed the defendant‘s tract in the town of Thomasville. After he had gotten across, and when distant from 15 to 40 feet from the track crossing, and about the time the engine passed the crossing, the horse began to back and continued backing and backed into the cars, about the second or third coach. Plaintiff testifies: “I had just crossed the track and the horse began to cut up and ran back and backed the right wheel against the cars and threw me between the shafts and the horse, under his feet. The first time I saw the train the horse wheeled right around towards Lexington and cut up and I could not see anything. I was something over the length of the horse and buggy when train came along the track.” Plaintiff states that then the horse began to back and he urged him forward. “I do not know as I said my horse was an old fool, but she was an old fool or else she would not have run back that way.” Elliott testified in substance that about the time the engine passed the crossing the horse began to back and kept on backing and backed into the train. The engineman was looking out at plaintiff and his horse. He slackened up the speed of the train. It was going at a very slow rate of speed. The engine, tender and several cars had passed before plaintiff‘s buggy struck the train. He also testified that the train stopped very
In view of the fact that the engineman was on the crossing with his engine when he saw the horse commence to back, and brought his train to a standstill in 15 feet of the crossing according to the witness, Elliott, and within two or three car lengths, according to plaintiff, it is very doubtful if there is any negligent conduct upon the part of the engineman disclosed by the evidence. But, assuming there is such evidence, in our opinion there is nothing which tends to prove that the alleged negligent conduct caused the damage to the plaintiff or his buggy. This is not a case where the train ran over or backed into the plaintiff, but where the plaintiff backed into the train. While there is no evidence offered that the engineman could have stopped his train any sooner than he did after first seeing the horse “cut up,” yet, assuming that he could have done so and that the train was at a standstill at the moment the horse backed the right buggy wheel into the car, we think no rational inference can be drawn that the result to the plaintiff and his buggy would have been otherwise than it was. There is no affirmative proof whatever that the stopping of the train a moment sooner would have prevented the contact with the buggy wheel or the resultant injury. In view of the lack of evidence, to submit that question to the jury would be to refer it to the domain of guesswork and con
We are of opinion that the proximate cause was (to quote the language of the plaintiff) “the old fool horse.”
Affirmed.
Hoke, J., dissenting: I differ from the court in its decision of this case, and while no question of law is seriously involved, the difference as to its application to the facts before us, is sufficiently pronounced to justify some statement of the reasons for my dissent.
It is accepted law in actions of this character that when two men of fair minds can come to different conclusions on the question of actionable negligence, the jury must determine the issue; and that this applies not only to the negligent act, but to the question of proximate cause.
It is also the better doctrine that where the negligent act has been established or admitted, it is only in clear and exceptional instances that the question of proximate cause should be withdrawn from the jury and determined by the judge. Shearman & Red., Neg., vol. 1, sec. 52; Thompson‘s Com. on Law of Neg., vol. 1, sec. 161.
Another position may be considered as established; that when a judge withdraws a case from the jury by directing a nonsuit, the evidence favoring the plaintiff must be taken as true. Hopkins v. Railroad, 131 N. C., 464; Biles v. Railroad, at this term.
The court does not seem to have been altogether advertent to this last principle; for, in the opinion, apparent consideration is given to evidence favoring the defendant in certain phases of the case where there was other evidence contradictory or qualifying which was more favorable to plaintiff.
Applying the above rules to the facts before us, as I understand them: Here was a man over 80 years of age, in a top buggy, who had just driven over a crossing of defendant‘s railroad, when a passenger train of defendant company passed the crossing, going north. The railroad ran about north and south here. The plaintiff had just driven over, being something over the length of the horse and buggy, as he states it; was from 15 to 20 feet from crossing, as the witness Elliott states it; and as the train went by the crossing, the horse commenced backing the buggy towards the train. The road sloped upward some towards the crossing, and as the train moved on, going the distance of several car lengths, the horse continued to back the buggy up the slope, till the train and the buggy collided. The right hind wheel of the buggy was crushed down; the old man thrown from his seat on to the fore wheel, falling under the shafts, between the horse‘s heels and received severe injuries, from which he still suffers. During the time the horse was backing, the engineer was looking directly at him. A collision was evidently imminent for some one jumped from the train and caught the horse by the bridle in an effort to avoid the catastrophe, “but the train moved on.” The witness, Elliott, a merchant in Thomasville, who had no interest in the matter, so far as appears, and who had the entire occurrence in full view, at a distance of not more than 134 feet from the center of the crossing, testifies in part, as follows: “To the best of my recollection, about the time the engine passed the crossing, the horse began to back and kept on backing and backed into the train. I saw the engineer looking out of the window, and some one else stepped from the train. The engineer was looking at Mr. Kearns and his horse. He apparently ‘kinder’
There are several points in the testimony of this witness which may be noted as a help to the true understanding of the matter. Thus, “I saw the engineer looking out of the window, and some one else stepped from the train. * * * The engineer was looking at Kearns and his horse; he apparently slacked the speed of the train. It seemed so. Then he kept looking back, and just after he struck the train, he put on * * * brakes and stopped the train * * * The train stopped very quickly after he was hit * * * He stopped very quickly; went about 10 or 15 feet. He was apparently holding the train under control, watching the situation.”
The opinion substantially admits that there was negligence in not stopping the train outright, and sustains the ruling of the court below on the ground that there is no evidence that the motion of the train had anything to do with causing the injury; and that this is so clear there can be no two opinions about it among fair minded men.
A dissertation on the momentum possessed by bodies of vast weight and tremendous power, though moving slowly, might be of service here, but I find it difficult to discuss this last position with that seriousness which is always becoming when making final deliverance on the rights of parties and which the great respect entertained for my brethren always prompts. To hold that the movement of the train, though negligent, had nothing to do with causing or contributing to the plaintiff‘s hurt, to my mind involves the proposition that when a 400,000 pounds train in motion collides with a 300 pounds buggy and a 900 pounds horse also in motion, in which the wheel of the buggy is crushed down and the occupant thrown from his seat, causing him to fall beneath the horse‘s heels, the motion of the train had nothing whatever to do with intensifying the shock or increasing the damage, and that this is so clear that there can be no two opinions about it.
The reasons given in support of the position are no more satisfying than the position itself. It is urged that the train was going “slowly, very slowly.” This is a comparative term and does not mean the same thing when speaking of trains as in slower methods of locomotion. Thus, the witness, Elliott, says at one place, “It was going along very slowly, not trying to make good time.” However this may be, it was
It is also repeated, in aid of the defendant‘s engineer, that after the collision the train was stopped very quickly, but I cannot see how that can help the defendant. The train had gone 10 or 15 feet beyond the point of contact, and stopping it quickly only tended to show that the engineer had his train under full control and could readily have stopped in time to avoid the injury if he had so desired. As to the plaintiff, the injury had been already done, and the train could have proceeded on its way north and not added one whit to the plaintiff‘s grievance or his injury.
It might be suggested in support of plaintiff‘s position as a matter of common observation, that under all the conditions described by this testimony, a buggy could have backed up that incline at the rate described, against a stationary object, and it would not have crushed a buggy wheel of ordinary strength one time out of ten, or even one hundred; the only other element present was the motion of the train, and the strong probability is that this motion either caused, or greatly intensified the injury.
It would seem almost to permit the application of the principle res ipsa loquitur and that neither evidence nor further argument is required. I agree with my brethren that there
Clark, C. J., dissenting: I concur in what is so admirably said by Mr. Justice Hoke. Whether the proximate cause of the plaintiff‘s injury was his owning a “foolish” little horse, over which he lost control, and which backed the buggy and its occupant up a steep hill against the car, or whether it was the act of the defendant‘s servant in crushing into the buggy with the energies of steam and the weight of a heavy train of cars, which, notwithstanding he had under perfect control, and with full knowledge that the plaintiff could not control his horse, was a matter of fact eminently for a jury to decide. If “only one inference could be drawn” it would be that the proximate cause was the vastly greater power of steam which was under the control of the defendant‘s servant. In this collision between the backing horse and the moving train, not only was the impact of the latter the greater force, but there was negligence on the part of the defendant and none on the part of the plaintiff. How much of the damage was due to the neglect and default of the defendant was a matter which only a jury can determine. If there had been no negligence by the defendant, the injury would have caused it no liability, but the defendant‘s negligence is clear. In Craft v. Railroad, 136 N. C., 49, the court holds that “on a motion for nonsuit the evidence of the plaintiff must be taken as true and construed in the light most favorable to him, and if there is more than a scintilla of evidence tending to prove the plaintiff‘s contentions, the question must be left to the jury, who alone can pass upon the weight of the testimony and the credibility of witnesses.” To the same purport are Cox v. Railroad, 123 N. C., 604; Coley v. Railroad, 129 N. C., 407; 57 L. R. A., 817; Hopkins v. Railroad, 131 N. C., 463, and Butts v. Railway, 133 N. C., 82.
In Purnell v. Railway, 122 N. C., 832, the court holds that “a motion of nonsuit is substantially a demurrer to the
The theoretical proposition that the only inference which could reasonably be drawn was that the causa causans lay with the little horse, backing buggy and driver up hill, is met by the fact that two members of this court draw a different inference. There is no place to apply a theory when the foundation fact, which would deprive the plaintiff of the sacred right of trial by jury, is lacking.
The
Constitutional guaranties, like that of a trial by jury, are the necessities of the weak and humble. The great and powerful can get their dues (if not more) without such aid. Therefore, such right should be always sacredly guarded and never dispensed with. If a judge can dispense with a jury trial because he thinks that upon the evidence the verdict ought not to be in favor of the plaintiff, then the judge, not the jury, tries the case and weighs the evidence, whether it is “reasonably sufficient” to justify a recovery. Why carefully forbid the judge to express an opinion “whether a fact is fully or sufficiently proved,”
The ancient landmark was that if there is “any evidence beyond a scintilla” either party has a right to have the jury pass upon the evidence, leaving it to the judge in the interest of justice to set aside the verdict if palpably erroneous. Jordan v. Lassiter, 51 N. C., 133. This was fully debated and reiterated in Wittkowsky v. Wasson, 71 N. C., 451, where Bynum, J., with great foresight and to his lasting honor, in a dissenting opinion of great force, combatted the “new and dangerous proposition” as he termed it, which was intimated by the majority opinion that “any evidence” could be construed to mean such “as reasonably to satisfy the jury.” As he clearly perceived and earnestly insisted, this would take the right of trial by jury out of the rank of a constitutional guaranty and make it discretionary with the judge.
“Power is ever stealing from the many to the few.” Here, two out of five members of this court are of opinion that there was not only evidence, but indeed that the weight of the evidence was in favor of the plaintiff. The counsel for the de