Buckner v. Black Mountain Railway Co.

CoNNOR, J. On or about 19 April, 1926, plaintiff was a passenger on defendant’s train, running from Kona in Mitchell County, to Dellinger, N. C. When the train reached Micaville, the engine was detached from the car in which plaintiff was sitting, leaving the car standing on defendant’s track. The train crew left the car, without putting the brakes on. The engine proceeded to a sidetrack, to do some switching. The car in which the plaintiff had been riding immediately began to roll backward, down grade. The railroad track from Kona up to Micaville is up grade and crooked. There is a river on one side of the track, and a mountain on the other. As the car began to roll down the track, plaintiff got up from her seat, and went to the rear of the car. As the car was rolling faster and faster down the track, plaintiff became frightened. She jumped from the rear of the car to the ground, and was injured. She testified that she jumped because she knew about the curves in the track, and because she was apprehensive that the car would leave the track, and plunge into the river. She thought it was safer to jump from the moving car, than to remain in it. She further testified both as to the nature and extent of the injuries which she sustained when she jumped from the rolling car to the ground. She became a mother about three and a half months after she was injured. The evidence offered by plaintiff tended to sustain her allegations of actionable negligence on the part of the defendant. It was properly submitted to the jury. Defendant’s assignments of error on its appeal to this Court from the judgment on the verdict have been carefully considered. They cannot be sustained. Dr. Robinson, an expert witness on behalf of the plaintiff, testified in corroboration of her testimony as to the nature and extent of her injuries. In answer to a hypothetical question, he testified that upon the facts stated therein, he had an opinion as to the cause of her injuries, but that this opinion was not satisfactory to himself. In response to a question addressed to him by the court, the witness said: “Well, if I *656 should have to express an opinion, I should naturally think that the injury she sustained, when she jumped from defendant’s train, was the-cause of her condition thereafter, but this condition could have been caused without such injuries. That is why I say -I have no satisfactory opinion as to the cause of her injuries.” This testimony was admitted over defendant’s objection, and subject to its exception. The probative-force of the testimony, if any, was very slight. The witness’ reply to the question of the court was in effect an explanation of why he did not have a satisfactory opinion as to the cause of plaintiff’s condition, as stated in the hypothetical question. It was competent for that purpose. Riggs v. R. R., 188 N. C., 366. It was subject to the tests ordinarily applied to the evidence of witnesses other than experts. Hedgepeth v. Coleman, 183 N. C., 309. Prior to the trial, the deposition of G. E. Elliott, who was the only other passenger on the car at the time plaintiff jumped therefrom, had been taken by defendant at Johnson City, Tennessee. This witness was present at the trial, and testified in behalf of defendant. For the purpose of corroborating the testimony of this witness, defendant offered in evidence several pages of what purported to be his deposition. Upon plaintiff’s objection this evidence was excluded. The paper-writing offered as the witness’ deposition was not signed by him; there was no evidence tending to show that said paper-writing was signed by the stenographer, or certified by the commissioner as the witness’ deposition. It had not been filed in the Superior Court of Yancey County. In the absence of any evidence tending to show that the pages of the purported deposition, offered by defendant, contained a true and correct statement of what the witness had testified, at the time his deposition was taken, these pages were properly excluded. The record does not disclose what the witness Rozier would have replied to the question as to whether he could identify the pages offered by defendant as the testimony of the witness, G. E. Elliott, at the time his deposition was taken at Johnson City. The exception to the exclusion of the answer of the witness to the question is, therefore, not presented to this Court for review, upon defendant’s appeal. Barbee v. Davis, 187 N. C., 78. Ye cannot presume that the witness would have replied that he could identify the paper-writing as the deposition of G. E. Elliott. He had testified that the deposition was taken by a stenographer and transcribed by her; there was no evidence tending to show that the witness had ever seen the paper-writing, which purported to be the deposition. Defendant further excepted to an instruction contained in the charge of the court to the jury. "While this instruction, as same appears in the case on appeal, is not clear, and is admittedly confusing with respect to the burden of proof on the first issue, defendant’s assignment of error *657 based on its exception cannot be sustained. There is no error in the instruction, for which the defendant is entitled to a new trial. We think it sufficiently appears therein that the jury were instructed that the burden upon this issue was upon the plaintiff, and that if the jury should fail to find the facts to be as she contended, they should answer the issue, “No.” The judgment is affirmed. There is No error.