Cogdell v. . R. R.

CLARK and DOUGLAS, JJ., dissenting. Defendant company delivered at Washington, upon its track at the wharf, a carload of coal consigned to the Stryon Transportation Company. According to the agreement between them, it was the duty of the consignee to unload the coal from the car. Plaintiff's intestate was employed by the consignee to unload the coal, and, while undertaking to do so fell into the river and was drowned, on account of which this action was instituted.

The contention of plaintiff is that defendant company was negligent in the construction of its premises provided for delivering this freight, and in leaving an open space between the car and platform two or three feet wide over the water of the river, and in covering said space with an apron made of cedar-hearted, or unsound, timber, and while her intestate was using said apron by standing thereon, in unloading coal from the car, it broke, and intestate fell through into the water and was drowned; or that, if not using the apron to stand upon, he slipped and fell on the same, which, by reason of its unsoundness, broke, and he fell through into the water and was drowned. Defendant, after denying its negligence, avers in its answer "that the death of intestate was not caused by any negligence of defendant, but was caused by the negligence and fault of plaintiff's intestate himself," and insists and relies upon its plea of contributory negligence.

There were three issues submitted to the jury: "1. Did Samuel Cogdell come to his death by the negligence of defendant, as alleged? 2. If so, was he guilty of contributory negligence? 3. What damages, (316) if any, is the plaintiff entitled to recover?" The jury answered the first two in the affirmative, and therefore did not respond to the third. Judgment was rendered in favor of defendant, and plaintiff appealed.

Of the thirty-eight exceptions taken by plaintiff, those which relate to the negligence of defendant company and to the damages are not material to this decision.

The evidence relating to the accident shows that intestate, when last seen alive, was upon the car of coal throwing off lump coal with his hands upon the platform; and a few minutes thereafter he was missed, search made and his body found in the water. When taken from the water, his body was still warm, and bruises were found upon his left knee, shoulder, back of his head and about his right eye. Upon the side of the coal car, about six inches from the top, were found finger prints of both hands ranging straight down, and the print of the toe or heel of a shoe near the finger prints. The prints raked about one-half way down the side of the car, or a little more. The "scrape took the paint off," and the apron was broken immediately below the finger and toe (or heel) prints. The apron was made of plank an inch or an inch and a half thick, sixteen feet long, and nailed together with battens across the underside and was fastened to the platform with hinges and folded over, so that the other side rested against the coal car; and the breaks in the planks revealed their unsoundness. This apron had been used to keep the coal from falling through into the water, and also by the laborers in standing upon while engaged in unloading coal. It was covered over with coal dust, and had been in use three or four months, so that if any defect existed in its make or material it was not apparent. Defendant contends that plaintiff, notwithstanding its negligence, can not recover, for that intestate was negligent in voluntarily putting himself in a drunken (317) condition, and while so drunk and unfitted undertook to do the work, and in doing so fell off, and that his drunken condition was the immediate or proximate cause of his death, and his negligence, coexisting with defendant's, defeats a recovery.

The evidence as to intestate's general condition, as well as that relating to his condition on the morning of the accident, is very conflicting. That introduced by plaintiff tends to show that he was a sober, energetic, industrious, able-bodied laborer and good provider for his family, and that he was sober at the time he went to the car to unload it; while that of defendant tends to show that he was a barroom loafer, rarely ever sober, a chronic drunkard, and was so drunk when he started to the car, 15 or 30 minutes before he was found drowned, that he could not walk straight, but staggered as he went along; that he took a "short" in Dudley's bar, and went out and then came back and took another "short," and after taking the second one, his son treated him to another; that he bought a half pint of whiskey at Simmons' bar and drank half of it, and put the balance in a bottle.

The second exception (which also covered exceptions 4, 5, 8 and 14) is to the exclusion of evidence. Plaintiff proposed to ask the witness, "If this plank of the apron had been sound and not cedar-hearted or rotten, could a man of Cogdell's weight and size have stood upon it with safety and thrown off the lump coal, or fallen on it from the top of the car without its breaking under him?" This question was directed to the inquiry as to the negligence of defendant company in providing an unsound and unsafe apron, and is immaterial to this decision, since the jury found that issue in favor of plaintiff. It could not relate to the alleged contributory negligence or assumption of risk by intestate, (318) because all the evidence shows that the rottenness or unsoundness of the timber was latent and not discoverable untilafter it was broken. However, we see no error in its exclusion. The weight of Cogdell, quality and condition of the lumber of which the apron was made and height of the car above the apron, were shown to the jury by the evidence. With these facts fully described before them, the jury could judge for themselves as to the strength of the plank and effect of a fall, equally as well as the witness, and then his "opinion" would have been superfluous, and therefore should be excluded. "The opinion rule is a rule based on the thought that when all the data of drawing an inference are before the jury . . . it is superfluous to add, by way of testimony, the inference which they can equally well draw for themselves, . . . the witness's opinion is excluded, not because inferences as such are objectionable, but because the inference under the circumstances is superfluous, . . . and adds nothing to the essential data before the jury." I Greenleaf Ev., sec. 441b. "The general rule undoubtedly is that witnesses are restricted to proof of facts within their personal knowledge, and may not express their opinion or judgment as to matters which the jury or the court are required to determine." 1 Rice on Evidence, 325; 3 Taylor on Ev., sec. 1414. The opinion here sought does not come within any of the exceptions to the general rule, such as identification of persons, tracks, handwriting, etc., the opinion about which is formed from comparison in the mind of the observer, or as to sanity or insanity of a person where the opinion is formed from the expression, tone, look, gestures, temper, etc. (Clary v. Clary, 24 N.C. 78), which can not be, from their very nature, described by the witness to the jury; nor is it contended that it comes within the rule as to experts.

Exceptions 3, 7, 12 and 13 are taken to the exclusion of evidence offered to show for what purpose the apron was useful and (319) convenient; and if constructed of sound plank and securely fastened, a man could stand on it and throw off lump coal from the edge of the car. Primarily, this evidence tends to show negligence by defendant company, which is not under consideration; and, secondarily, to justify intestate in using it for such purposes, if he did so; but, as we have already said, there is no evidence tending to show that he did stand upon the apron at all, or that he was using the apron for such purpose at the time of the accident, and, if he had been doing so, there was no evidence to show that he knew or could have known of any defects in the apron. So we do not sustain these exceptions.

Whether intestate's death resulted from his own negligence in going upon the coal car after becoming so drunk that he could not take care of himself, was a question for the jury to determine upon the evidence submitted, and the burden of proving the same is imposed by law (Laws 1887, ch. 33) upon the defendant. There was evidence, if believed by the jury, to establish such negligence. But plaintiff insists that the plea of contributory negligence was not raised by the answer, and the second issue should not have been submitted to the jury, which was ruled against her, to which she excepted. (Exception 17.) We think his Honor properly submitted such issue.

In its answer, defendant avers "that the death of intestate was not caused by any negligence of defendant, but was caused by the negligence and fault of plaintiff's intestate himself." This is a strict compliance with the statute (Laws 1887, ch. 33), and put plaintiff upon notice as to that defense, as fully appears from the fact of her being prepared with evidence to meet the charge of going upon the car in a drunken condition. However, if plaintiff had not anticipated, and could not with reasonable certainty have anticipated the defense, it would have been proper for the court, upon application, to have ordered (320) that a bill of particulars be furnished as prescribed in The Code (Clark's Code, sec. 259, and cases there cited).

Exceptions 15 and 16 are taken to the admission by the court of the testimony of Dr. Nicholson and Cordon, in contradiction of plaintiff's witness Nelson. Upon the trial Nelson testified that he saw intestate when he was upon the car, and that he seemed to be sober; and to impeach him, Dr. Nicholson and Cordon were introduced to show that Nelson told them that Cogdell was so drunk he looked curiously out of his eyes on the morning of the accident. Dr. Nicholson testified that he reduced to writing and read over to Nelson that which Nelson told him concerning intestate's condition, and, after hearing it read, said it (the statement) was all right, but did not sign it. And Cordon testified that he wrote down what Nelson told him to the same effect. His Honor permitted the witnesses to testify from their recollection, and allowed them to refresh their memories from the writings. Plaintiff insisted that the written statements should be introduced as the best evidence, and objected to the oral testimony. We think his Honor properly excluded the writings or memoranda, and allowed the witnesses to testify from their recollections thus refreshed. The writings, or written statements, were not signed by Nelson; they were simply declarations made by them, and, being hearsay, could serve no purpose except as memoranda from which it was permissible for them to refresh their memories.

The record fails to show any evidence that intestate used the apron to stand upon, or that he used it in any way, or that it was needful or useful for any purposes other than to prevent coal from falling overboard and for laborers to stand upon. Therefore, it is not necessary to discuss the charge or prayers for instruction concerning its use or the assumption of risk by intestate with reference to it. No defect (321) was apparent, and its unsoundness was only discoverable after it had been broken. But we have carefully reviewed the charge and prayers as to those matters, and fail to find any error prejudicial to plaintiff.

Defendant contends that intestate's death was caused by his own negligence in going upon the car of coal in an intoxicated condition, by reason of which he was unable to maintain himself upon the car and fell upon the apron and broke through into the river, which resulted in his death, and his negligence being concurrent with it, plaintiff can not recover. Relating to the charge of his Honor upon this contention (and his refusal to give instructions prayed for), we fail to find any error. The substance of the charge upon this phase of the case is contained in the following part thereof: "If the jury should believe from the evidence that Cogdell was intoxicated and fell from the car, then his condition would not necessarily affect plaintiff's right to recover in this case, unless such intoxication substantially and essentially contributed to his death. Intoxication is not negligence of itself, but is only evidence of negligence. . . . If deceased voluntarily drank liquor and thereby became intoxicated so that his usual faculties were temporarily impaired, or his capacity to perform his ordinary work with safety was impaired, then such condition was due to himself, and if injured by reason thereof it would be negligence. If the deceased voluntarily incapacitated himself from exercising ordinary care by drinking liquor, and while in this condition got on the coal car for the purpose of unloading the same, and by reason of his intoxicated condition fell off the car, you will find that the deceased was negligent and contributed to his own death, and you will answer the second issue ``Yes.' That the evidence in this case does not present any element of the ``last clear chance' on the part of the defendant to have prevented the deceased from falling into the water." (Exceptions 26, 27 and 28.) (322)

Plaintiff requested his Honor to charge the jury, "The law presumes that a person found dead and killed by the alleged negligence of another has exercised due care himself." Which was refused, but in lieu thereof his Honor charged, "That an inference arises from the instinct of self-preservation that a person killed has exercised due care himself," to which plaintiff excepted. (Exception 38.) Also, "That if the deceased did not know, or could not have discovered by ordinary inspection, that the apron was constructed of unsound planks, and if apparently it was strong enough to bear his weight, if he fell from the car, and to roll him off on the platform, then it would not be contributory negligence for him to have gone on top of the car to unload it, or to have fallen therefrom. The deceased was not required to know an unseen and hidden defect in the apron not discernible by ordinary inspection." This prayer his Honor gave, but inserted after the word "therefrom" and before "The," "unless the fall was the result of want of care." To which insertion or modification the plaintiff excepted. (Exceptions 21 and 34.) Plaintiff further asked the court to charge that, "If the jury should believe, from the evidence, that deceased was intoxicated, and by reason thereof fell from the car on the apron, and that the apron would have sustained his weight and rolled him upon the platform if it had been built of sound material, and the deceased did not know of such unsoundness, and could not by reasonable inspection have discovered the same, then his intoxication and his fall from the car would not be the proximate cause of his death, but the proximate cause would be the defective apron," which was also refused, and excepted to. (Exception 34.)

The exceptions taken above can not be sustained. It is contended with great zeal that his Honor erred in refusing to instruct (323) "that the law presumes that a person found dead and killed by the alleged negligence of another has exercised due care himself." (Exception 38.) This would be true as an abstract proposition of law, in casting the burden of proving want of care upon the defendant. But that presumption is now incorporated in our statute (Laws 1887, ch. 33), which expressly imposes the burden of proof upon the defendant who sets up contributory negligence as a defense; and it appears from the case on appeal that his Honor properly instructed the jury as to this burden: "After recapitulating the evidence and stating the rule as to the burden of proof and the contentions of the parties, the jury were instructed by the court as follows." (The italics being ours.) Having stated the rule (which must have been correctly done, as there is no exception), it was unnecessary for the court to give any instruction as to the presumption.

Failing to find any substantial error prejudicial to the plaintiff, the judgment of the court below must be

Affirmed.