Brantley v. Atlantic Coast Line Railroad

Devin, J. The appellant assigns as error the denial of its motion for judgment of nonsuit, interposed at the conclusion of plaintiff’s evidence and renewed at the close of all the evidence. The ruling of the trial court on this motion must be sustained. The evidence offered would seem to entitle the plaintiff to have her case submitted to the jury. This is in accord with the decision of this Court in Saunders v. R. R., 185 N. C., 289. While in the Saunders case, supra, recovery for a similar injury was denied, the evidence here presented brings the instant case within the principle there set forth and sustains the ruling of the court on the motion of nonsuit. Here the plaintiff, a child of twelve years, was placed under the care of the train conductor by her uncle. The conductor ushered her into the coach and gave her a seat by a window and himself raised the sash. The fact that, under these circumstances, shortly thereafter, following a sudden slackening of the train, the window sash fell and injured the plaintiff, would seem to permit the inference of negligence for the reasons stated in Saunders *456 v. R. R., supra, and the authorities there cited. The charge of the court to the jury was free from error. Since the argument of the case, the defendant has filed motion for a new trial on the ground of newly discovered evidence, based upon verified statements from a number of prospective witnesses whose testimony it alleges it did not discover until after the trial, and of which it was unable to make use in its defense. Hilton v. Ins. Co., 195 N. C., 874; Johnson v. R. R., 163 N. C., 453; Mottu v. Davis, 153 N. C., 160. After due consideration of the motion and affidavits, in connection with the evidence adduced at the trial, and without any intimation as to the sufficiency or the probative effect of the testimony, we are of the opinion that a new trial should be awarded by reason of newly discovered evidence. In accord with the rule of this Court stated in Herndon v. R. R., 121 N. C., 498, and Crenshaw v. Street Railway Co., 140 N. C., 192, the facts on the motion are not discussed. New trial.