Adams v. Kinston & Carolina Railroad

AlleN, J. There is ample evidence of negligence on tbe part of tbe defendant. Tbe collision raises a presumption of negligence. Kinney v. R. R., 122 N. C., 961; Marcom v. R. R., 126 N. C., 200; Wright v. R. R., 127 N. C., 229; Stewart v. R. R., 137 N. C., 689. In addition to this presumption, there is evidence tbat tbe train was running backward, before daylight, with no man or light on tbe rear car, which is evidence of negligence. \ Tbe- defendant says, however, tbat these principles do not militate against its contention, and tbat, upon tbe whole evidence, a judgment of nonsuit ought to have been entered. Its counsel says in bis brief: “Tbe vital questions, therefore, arising in this appeal, are: “1. Did Weeks assume authority to act as conductor on tbe morning in question? “2. If so, did tbe defendant authorize him to so act or knowingly acquiesce in bis assumption of authority to such an extent as to ratify what be did and become responsible for bis conduct ? *176 “3. Even granting, for the sake of argument, that the first and second propositions could be answered affirmatively, then as a matter of law could Adams, knowing that Hayes was superintendent and was the representative of the defendant who had employed him, disobey the express and specific orders of Hayes, a superior officer, in order to carry out the orders of Weeks, admittedly an inferior to Hayes (even if it could be said that he had any connection with the defendant) ? , “4. It appearing in the plaintiff’s own testimony that Adams knew Weeks was not conductor on the morning of the injury, the testimony of the plaintiff showing that one Singleton had been employed the Eriday before and that Weeks was no longer assuming to hold the position, could said Adams proceed to obey Weeks’ orders except at his own peril?” If we understood the evidence as the defendant’s counsel construes it, we might agree with his conclusion; but we do not. In our opinion, there is evidence that Weeks had authority to control the movement of the train, and that the intestate was not acting in violation of directions given him by Hayes. There is also evidence’that the intestate did not know that the cars were on the track. A witness for the plaintiff, C. C. Bell, testifies that Weeks was acting as assistant conductor and manager of the defendant; that he gave instructions to Davis, who was the acting engineer, as to the movements, of the train; that Davis acted on his orders; that Weeks had been acting as conductor of the train; that the train was running backward at the time of the collision, with no light or man on the rear; and that he was on the train with the intestate on Saturday, and that the intestate was at that time making up his pay-rolls, and did not know the cars were left on the track. He also testifies to being present on Sunday and hearing the conversation between the superintendent, Hayes, and the intestate, as follows: Q. Where was it Mr. Hayes gave you instructions on Sunday? A. At the office. Q. Who else? A. Mr. Adams and myself. Q. You say Mr. Hayes told Mr. Adams to take Davis as engineer? A. No, sir; I didn’t say so. *177 Q. Did be tell you to put tbe band car on top of tbe flat car ? A. Yes. Q. What time was tbis ? A. Somewhere between 11 and 12 o’clock. Q. Why did you go there on Sunday? A. It was tbe usual thing. Mr. Adams would go down on Sunday between 11 and 12 o’clock toi get orders for Monday; that was Mr. Hayes’ order, to go down on Sunday and get orders for Monday. Tbe regular engineer was sick, and for tbis reason did not run tbe train on Monday, and Weeks knew tbis. Another witness testified be bad beard Weeks give orders as to tbe running of tbe trains, in the presence of Hayes, without objection or protest. There was evidence on tbe part of tbe defendant directly contradicting tbe evidence of tbe plaintiff, but we cannot pass on tbis conflict of evidence, and for tbe purpose of tbe motion for nonsuit must accept’the evidence of tbe plaintiff to be true. Upon a review of tbe record, we find No error.