75 S.E. 812 | N.C. | 1912
The facts are sufficiently stated in the opinion of the Court. *2
The plaintiff's intestate began an action for injuries sustained by the negligence of the defendant. He died before the termination of that action and, the complaint avers, as a result of said injuries. It was competent for his personal representative to bring this action for wrongful death.Bolick v. R. R.,
There was evidence tending to show that the intestate was injured by the negligence of the defendant, in that the car was dangerous and antiquated; that the train was running at an unusually high rate of speed, and that the track was not in good condition. The defendant in its answer alleged that the plaintiff's intestate was riding on a freight train in violation of rules of the defendant. There was evidence that the plaintiff's intestate was assistant agent at Pactolus.
The plaintiff offered evidence to show that other agents were repeatedly seen riding on the train, with the knowledge of the conductor or trainmaster, notwithstanding the allegation in the answer that it was contrary to the rules of the company to permit any one to ride on such trains. This evidence was rejected by the court. In this there was error. In Biles v. R. R.,
The nonsuit, we apprehend, was granted upon the ground that the plaintiff's intestate was wrongfully on the train; but the above evidence, if admitted, would have tended to show that he was rightfully on the train, either as an employee or by permission of the conductor, and that it was the custom for conductors on said road to allow agents, assistant agents, and others to ride on freight trains. (3) Indeed, this evidence was not contradicted; and even if it had been against the rules of the company, there was no evidence of the fact, for the rule book was not introduced in evidence.
The judgment of nonsuit must be
Reversed.
Cited: Edwards v. Chemical Co.,
