Kearns v. Railroad

HOKE, J., and CLARK, C. J., dissenting. The duty of the judge to nonsuit when the evidence is not legally sufficient to justify a verdict for the plaintiff, is too well settled *Page 373 to admit of dispute. It is the law in this State, long since declared by this Court and recognized by the General Assembly. It is also the rule of practice in every court where the practice and principles of the common law prevail. "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 S. v. Smith, 136 N.C. at page 687. Evidence has a two-fold 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 rational deductions, as where there is a failure of evidence in respect to any material fact involved in the issue, then the evidence is not legally (472) sufficient to justify a finding upon the issue it is offered to sustain, and it becomes the plain duty of the judge to instruct accordingly, for in such case the jury has no duty to perform. 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 theproximate cause of the injury." Byrd v. Express Co., ante, 273. 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 *Page 374 it was so, is legally insufficient, and, should not be submitted to the jury. S. v. Vinson, 63 N.C. 335; Brown v. Kinsey, 81 N.C. 245. "The plaintiff must do more than show the possible liability of the defendant for the injury. He must go further, and offer at least (473) some evidence which reasonably tends to prove every fact essential to his success." Byrd v. Express Co., supra. 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 17 August, 1902, plaintiff, driving his horse and top buggy, crossed the defendant's track 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 quickly, but he did not hear the brakes applied, being 150 feet distant. The train was going very slowly, and (474) after plaintiff's buggy struck it stopped very quickly. He further stated that the engineman shut off steam and slowed up when he saw the horse backing. The engineman could not have seen the horse "cut up" before the engine got on the crossing, because the horse did not begin to back and "cut up" until then. Witness said that he could see the engineman looking out of the window. "He was going very slowly, looking at this man. Stopped very quickly. *Page 375 Went about ten or fifteen feet, apparently holding his train under control, looking at this situation." 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 conjecture for solution. The engine was on the crossing when the horse began to back. That was the earliest moment that the engineman (475) could have discovered plaintiff's situation. Suppose he had stopped his engine and train instantaneously (although we do not know it to be possible), what would have been the evident consequence to the plaintiff? His horse would have backed his buggy into a hissing and steaming engine, a much more dangerous predicament. There is no evidence that the engineman could have so quickly reversed his engine as to back it out of plaintiff's way, and that was hardly possible in so short a time. There is not the slightest evidence that the car steps caught into the wheel and dragged the buggy any distance, or that the wheel struck the steps, as alleged in the complaint. When the frightened horse backed the right hind wheel against a very slowly moving car, it was well calculated to "smash the wheel" and pitch the plaintiff out between the shafts and horse by the force of the impact alone, and not because the car was moving. The same result would doubtless have happened had the horse backed with the same force against a stone wall. If the train had been moving rapidly, its momentum might possibly have drawn the buggy and its occupant under it when the horse backed the buggy into it. On the contrary, it was moving with such exceeding *Page 376 slowness that it came to a full stop very quickly, almost immediately after the contact, so that some person safely alighted and got hold of the horse's head, and the plaintiff was pitched forward instead of backwards or alongside or under the cars. The plaintiff has failed to establish by evidence any circumstances from which it can be fairly inferred that there is reasonable probability that the accident resulted from the failure of the engineman to stop the train sooner than he did, assuming that he could have done so, which is by no means certain. The plaintiff has failed to show that the alleged negligence was, in the expressive language of Mr. Justice Hoke, "the cause that produced the result in continuous sequence and without which it would not (476) have occurred; and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed." Ramsbottom v. R. R., 138 N.C. at page 41. We are of opinion that the proximate cause was (to quote the language of the plaintiff) "the old fool horse." Affirmed.