Cox v. High Point, R., A. & S. Railroad

CoNNOR, J.,

after stating tbe facts: Was plaintiff’s intestate injured while in tbe mail car .on defendant’s road ? Was sucb injury caused by the wreck of tbe car ? Did such injury cause bis death? Was tbe wreck caused by tbe-negligence of defendant company? Tbe plaintiff undertakes to establish by legal evidence tbe affirmative of each of these propositions as tbe basis for a recovery. She, by her learned counsel, earnestly contends that she has introduced testimony which is very much more than a mere scintilla, or tbe basis for a conjecture or guess that tbe facts are as she alleges. If she is correct in this contention bis Honor should have submitted tbe issues, under proper instructions, to tbe jury; otherwise tbe judgment of nonsuit was correctly rendered. This is elementary. Tbe law is dear. Its application to particular' cases is sometimes difficult. This is illustrated in many cases in our own and other reports. .It is seldom that appellate courts are unanimous in their opinions in sucb cases. Taking tbe facts established, and tbe reasonable inferences of which they are capable, most favorable to tbe plaintiff, we are of the opinion that tbe plaintiff was entitled to go to tbe jury. We do not think it is a strain upon a logical process of deduction to come to the conclusion upon tbe facts that on tbe morning of 7 March tbe plaintiff, in bis usual health, found by tbe physician less than a month before to be normal, left bis home in tbe discharge of bis duty to enter and remain in the mail car from Ashboro to High Point, not exceeding twenty-eight miles; that be was in tbe car at the time it jumped tbe track and by striking or being thrown against iron racks or table was bruised on his body and in the region of his kidneys (he was found upon examination to have symptoms indicating an injury to that vital organ) ; that these symptoms developed into acute Bright’s disease, resulting in pneumonia and causing his death on 19 March, 1905. The intelligent physician who testified at length gives a clear and satisfactory explanation of the conditions and symptoms. While, of course, we are discussing the testimony for the sole purpose of testing the question of law, which is alone for our consideration, the jury may reach an entirely different conclusion. They may adopt some one or more of the not unreasonable theories suggested by the learned counsel 'for defendant or may conclude that the questions are in so much doubt that the scales hang evenly balanced, in which case they would find for defendant. However this may be, we think the testimony is of sufficient probative force and is capable of such reasonable inferences consistent with plaintiff’s contention as to entitle her to have the finding of the jury before she is denied a recovery. The fact of derailment, certainly in the light of the testimony in regard to the condition of the track, carries that issue to the jury. The judgment of nonsuit must be set aside and the case proceeded in as indicated in this opinion.

New Trial.