Holder v. North Carolina Railroad

AlleN, J. The evidence in Clegg v. R. R., 132 N. C., 293, in which a judgment of nonsuit was sustained, was “that plaintiff’s intestate was seen going in the direction of defendant’s track and was later found dead, lying by the side of the track where a dirt road ran parallel with it, but not at a crossing, and with bruises from which it might be reasonably inferred that he had been knocked off the track and killed by defendant’s engine. The ti;ack was straight at that point for half a mile, possibly more. Part of the back of intestate’s head was knocked off. There was no eye-witness to the death, whether he was killed by the engine, or, if so, whether he was on the track or close by it when struck, or whether he was walking or sitting down or lying down on the track. There was no sign of the intestate having been dragged, nor had he been run over by the engine. The killing was at night. There was evidence by plaintiff’s witnesses that there was no sign of blood on the cross-ties, and some evidence to the contrary”; and the Court, speaking through the present Chief Justice, said: “If the deceased was either walking or sitting or lying down on the track, this was evidence of contributory negligence. Hord v. R. R., 129 N. C., 305. If walking or sitting down, the engineer (nothing else appearing) had a right to presume he would get off before the train struck him, and there would have been no negligence on the part of the defendant inferable from the mere fact, without further evidence, that the deceased was killed while on the track, for the engine had the right of way. If deceased had *7 been helpless, lying down on the track, and the engineer with proper outlook could, have seen him in time to avoid killing him, and did not do so, this T^ould have been negligence rendering the defendant liable, notwithstanding the previous contributory negligence of deceased, and that the track was straight for half a mile or more was evidence to go to the jury that if he had been lying down the engineer, with proper outlook, could have seen him; but there was no evidence tending to show that he was lying down (McArver v. R. R., 129 N. C., 380), and the burden of showing that the deceased was helpless on the track was upon the plaintiff. Hord v. R. R., 129 N. C., 305. The evidence of some blood on the track (though contradicted by plaintiff’s other witnesses) was equally consonant with deceased having been struck while walking or sitting down.” The evidence in this case is much more favorable to the defendant than was the evidence in the ease cited, because here the plaintiff has shown that his intestate was sitting on the end of the cross-tie at the time he was struck by the train of the defendant, if it struck him, and is in all material aspects like that in Upton v. R. R., 128 N. C., 173. As no presumption of negligence arises from the killing of the deceased, and as the engineer had the right to presume, up to the last moment, he would get off the cross-tie, if he was sitting up, the burden was on the plaintiff to prove that his appearance while on the cross-tie was such as to lead a man of ordinary prudence, in charge of the train, to believe he was unconscious or helpless, and we find nothing in the evidence that amounts to more than conjecture or speculation as to this fact. The circumstance that the head was bent over at the time the body was found, chiefly relied on by the plaintiff, is explained by the strong probability that a blow causing death could not 'have been received without making some change in the position of the body, and when death ensued' it was natural for the head to drop. It .also appears that several trains passed the body while on 'the cross-tie, without touching it, which would indicate a change in the position of the body after .it was struck, if the deceased was killed by a train of the defendant. *8 We are, therefore, of opinion that tbe evidence is not of such character as to justify submitting it to the jury. There is a marked distinction between this case and that of Henderson v. R. R., 159 N. C., 581. In the Henderson case the killing was admitted, and it was in the daytime. There was evidence that no whistle was sounded; that the deceased was found asleep by the side of the track about two hours before his death; that when aroused he walked up the track in the direction his body was afterwards found, staggering; that when found the body was on one side of the track, the head on the other, one arm under the trestle, and the other badly mangled; that there was blood on the rail; and none of these circumstances appear in this case. The ruling on the admission of a part of the answer is immaterial, as it has no tendency to prove that the deceased was in an apparently helpless condition, but simply that he was sitting on the end of a cross-tie. Affirmed.