Grant v. Raleigh & Gaston Railroad

MekrÍMOn, C. J.: As to the first exception, if it be granted that the Court should have allowed the question to be answered, it appears that another witness of the defendant upon cross-examination was afterwards allowed to testify that an accident, subsequent to that alleged in the complaint, had happened, and the counsel for the plaintiff said this was the one he desired the first witness to give evidence of. It was not questioned by the defendant that such second accident did occur, and hence the plaintiff had the benefit of the evidence in as full measure, in every aspect of the case, as if the first witness referred to had given the same. The exception is, therefore, without force. • Nor has the second exception any merit. The witness referred to was not examined as an expert, nor does it appear that he was ah expert, or that he was skilled 'in such matters as the question had reference to. The question he was not allowed to answer wras based upon a hypothetical state of facts and was intended to elicit his opinion. The answer, if the' same had been received, co¡ VI have served no proper purpose, [470] because “there was no evidence that this switch had worn.” It is so stated in the case, and no such evidence appears. There was evidence going to prove that the switch was in good condition. Evidence that trains had passed over the same for about two years did not of itself constitute evidence to prove that the switch had worn so thin as to prove negligence in that respect. The evidence to which the third and fourth exceptions refer was properly excluded. The condition of the defendant’s railroad track at places other than that at which the accident in question happened could not prove or disprove the condition of the track at the latter place. Such evidence would afford ground only for uncertain inference, mere conjecture, and it would certainly tend to mislead and confuse the jury. The same may be said of the evidence of the “ condition of the switches in the yard limit,” at the time of the trial. We think the plaintiff has no just ground of exception to the instructions complained of that the Court gave the jury. Indeed, it is questionable whether, in some respects, thejr w'ere not too favorable to him. The evidence went to prove the accident whereby the' plaintiff sustained injury, and that it may have been, and probably was, occasioned by the absence of an important bolt, the purpose and use of which -were to hold the “switch” in its proper place. There -was no evidence going to show what otherwise could have given rise to it. The principal inquiry was whether the defendant negligently allowed that bolt to be out of its place. It seems that only such parts of the instructions to the jury as were excepted to are set forth in the record. But it certainly appears that the Court very fully, in substance, told the jury that if the plaintiff had satisfied them that his “injury was occasioned by an act which, with proper care or by machinery, which with proper use and care, would not, [471] ordinarily, produce damage,” then the burden was on the defendant to prove that it was not chargeable with negligence. This was clearly sufficient and in harmony with numerous decisions of this Court. Ellis v. Railroad, 2 Ired., 138: Aycock v. Railroad, 89 N. C., 321, and cases there cited; Moore v. Parker, 91 N. C., 275; Railroad Accident Law, 433, et seq.; 3 Lawson Rights and Remedies, § 1213; Lawrence v. Green, 70 Cal., 417. The Court properly declined to give the jury the sixth special instruction asked for by the plaintiff. Leaving cars standing on a side track is not of itself negligence; certainly it is not when the cars are not in the way of trains passing on the main track. A train moving on the main track of a railroad cannot go upon a side track if the two tracks are respectively in order. It is not negligence to do what may be done in the regular course of business, if, in the nature of the matter, harm does not arise therefrom, unless occasioned by some negligence. Sellars v. Railroad, 94 N. C., 654. The plaintiff was not entitled to the seventh instruction asked for by him, because, clearly, there was evidence from which the jury might find that the defendant was not chargeable with negligence. Indeed, the evidence went strongly to prove its active diligence. Other minor objections to the instructions given are groundless, and are fully met by Sellars v. Railroad, supra, and Doggett v. Railroad, 78 N. C., 305. Judgment affirmed.