Bennett v. Atlantic Coast Line Railroad , 232 N.C. 144 ( 1950 )

59 S.E.2d 598 (1950) 232 N.C. 144

BENNETT
v.
ATLANTIC COAST LINE R. CO., Inc.

No. 601.

Supreme Court of North Carolina.

May 24, 1950.

Irvin B. Tucker, Jr., Whiteville, for plaintiff appellant.

Poisson, Campbell & Marshall, V. E. Phelps, Wilmington, E. K. Proctor, Whiteville, for defendant appellee.

WINBORNE, Justice.

Plaintiff, in this action, has the burden of proving the carrier's negligence as one of the facts essential to recovery, and, when he introduced evidence tending to show delivery of the shipment of horses and mules to the carrier in good condition and its delivery to the consignee in damaged condition, such evidence made out a prima facie case of negligence. Chesapeake & O. R. Co. v. Thompson Mfg. Co., 270 U.S. 416, 46 S.Ct. 318, 70 L.Ed. 659; Davis Livestock Co. v. Davis, 188 N.C. 220, 124 S.E. 157; Coley Farming Co., Inc., v. Seaboard Air Line R. Co., 189 N.C. 63, 126 S.E. 167; Fuller v. Virginia & Carolina Southern R. Co., 214 N.C. 648, 200 S.E. 403; see also Precythe v. Atlantic Coast Line R. Co., 230 N.C. 195, 52 S.E.2d 360.

In the Davis case, supra, it is stated: "The defendant admitted the contract of carriage, the receipt of the stock, and the death of one of the mules while in its possession. In these circumstances the loss is presumed to have been attributable to the defendant's negligence."

And our decisions are to the effect that a prima facie showing may take the case to the jury, and it is for the jury to determine whether or not the necessary facts have been established. Speas v. Merchants' Bank & Trust Co., 188 N.C. 524, 125 S.E. 398; Jeffrey v. Osage Mfg. Co., 197 N.C. 724, 150 S.E. 503; Hutchins v. Taylor-Buick Co., 198 N.C. 777, 153 S.E. 397; Independent Oil Co. v. Broadfoot Iron Works, 211 N.C. 668, 191 S.E. 508; Falls v. Goforth, 216 N.C. 501, 5 S.E.2d 554.

In Speas v. Merchants' Bank & Trust Co., supra, the rule is tersely stated in this manner: "A prima facie case, or prima facie evidence, does not change the burden of proof. It only stands until its weight is met by evidence to the contrary. The opposing party, however, is not required as a matter of law to offer evidence in reply. He only takes the risk of an adverse verdict if he fail to do so. * * * The case is carried to the jury on a prima facie showing, and it is for them to say whether or not the crucial and necessary facts have been established." [188 N.C. 524, 125 S.E. 401]

And in Hutchins v. Taylor-Buick Co., supra, it is said that "In the absence of some fatal admission or confession, as against a demurrer to the evidence or motion to nonsuit, a prima facie showing carries the case to the jury." [198 N.C. 777, 153 S.E. 398]

Applying these principles to the case in hand, we are of opinion and hold that the evidence offered by plaintiff makes out a prima facie case, and that the evidence offered by defendant fails to show any fatal admission or confession which would take the case out of the rule in cases of prima facie showing, as hereinabove stated.

Hence the judgment below, sustaining the motion for judgment as of nonsuit, is

Reversed.