Greene v. Atlantic Coast Line Railroad, 169 N.C. 532 (1915)

Sept. 29, 1915 · Supreme Court of North Carolina

169 N.C. 532

GREENE v. ATLANTIC COAST LINE RAILROAD COMPANY.

(Filed 29 September, 1915.)

1. Carriers of Passengers — Negligence—Evidence—Train Records — Corroborative Evidence.

Where damages are sought for a personal injury alleged to have been inflicted by reason of defendant having stopped its passenger train at an unusual stopping place, where the plaintiff alighted therefrom, exception that the conductor testified from his record of the train alone that the place was the usual one will not be sustained, when it appears that he testified to the fact directly and then stated that the train sheet, which he then examined, would have shown had it stopped at an unusual place, which it did not show.

2. Carriers of Passengers — Instructions—Inferential Evidence — Appeal and Error.

Where, in an action to recover damages for a personal injury alleged to have been inflicted on a passenger while alighting from defendant’s passenger train, there is evidence tending to show, as contended for by the plaintiff, that the injury occurred when the train stopped at an unusual place, and for the defendant that it did not stop until it got to its usual stopping place beyond, the jury has a right to accept as true a part of the plaintiffs evidence, and find that the injury occurred at the place contended for by him, but before the train stopped, and a contention of the parties stated by the court to this effect is not erroneous, though there is no direct evidence thereof.

Appeal by defendant from Ferguson, J., at the April Term, 1915, of HERTFORD.

Action to recover damages for personal injury, the plaintiff alleging and offering evidence tending to prove that on 15 March, 1912, he became a passenger on the train of - the defendant at Norfolk, with his destination at Eure; that he reached Eure at night; that the train stopped at an unusual place, about one hundred yards before the regular stopping place was reached; that he was notified to leave the train, and that he did so; that the place where he alighted was unsafe, and he fell down an embankment and was injured.

The defendant offered evidence tending to prove that the train stopped at the regular place, and that the plaintiff was not injured. '

The jury returned the following verdict:

1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: “No.”

Judgment was entered in favor of the defendant, and the plaintiff appealed.

B. T. Snipes for plaintiff.

Pruden & Pruden and S. Brown Shepherd for defendant.

Allen, J;

The plaintiff considers two assignments of error in the brief, and under our rules all others are deemed abandoned.

Tbe first of these is to tbe admission of tbe evidence of Mr. Pitt, tbe conductor, wbicb is objected to on tbe ground tbat be did not testify from bis own knowledge, but from bis records. It does not appear from tbe record tbat any exception was taken to tbis evidence, but if tbe exception was duly entered, tbe record does not bear out tbe statement 'tbat be was not speaking of bis own knowledge. He says, among other things: “I was on tbe train 15 March, 1912; was in control of train. I remember stopping in Eure; am not positive who got on or off. Tbe train made its usual stops and at usual places. I got off with lantern, as I always do. I stand between white and colored car. He did not get off there. I know tbe train did not make an unusual stop. I was telling what happened at Eure tbat night. I do know that we three got off with our lights, if there were no others. I know for a fact; know tbat tbe train stopped at Eure. If train bad made an unusual stop a record would have been made of it. I don’t say I remember everything tbat happened tbat night, but nothing unusual happened.” »

Tbe second assignment of error is tbat bis Honor presented a contention of the defendant tbat tbe plaintiff attempted to get off tbe train before being invited to do so, and while it was in motion, and tbis is based upon tbe contention that there was no evidence to support tbis view. There is no direct evidence of tbe fact, but tbe circumstances relied on by tbe defendant justified submitting it to tbe jury.

Tbe evidence of tbe defendant tended to prove tbat tbe train stopped at tbe usual place, and tbe evidence for tbe plaintiff tbat be got off or fell from tbe train before tbe train reached tbe'usual stopping place.

Tbe jury bad tbe right, to accept a part of tbe plaintiff’s evidence and reject other parts of it, and if tbe train stopped at tbe usual place and tbe plaintiff stepped or fell off tbe train, where be says be did, tbe train must have been in motion at tbat time.

His Honor charged tbe jury fully, and gave practically all tbe instructions asked by tbe plaintiff, and tbe jury upon a fair charge has answered tbe issue against him.

We find

No error.