George v. . R. R.

BARNHILL, J., dissenting.

STACY, C. J., and WINBORNE, J., concur in dissent. This is an action for the wrongful death of the plaintiff's intestate alleged to have been caused by the negligent failure of the defendant to avail itself of the last clear chance to avoid running its train over and fatally injuring the plaintiff's intestate while on the track of the defendant. At the close of the plaintiff's evidence the defendant's motion for judgment as in case of nonsuit was allowed, and from judgment accordant with the court's ruling the plaintiff appealed, assigning as error such ruling and judgment.

The evidence, when viewed in the light most favorable to the plaintiff, tended to show that about 1:55 a.m., on 18 July, 1938, the plaintiff's intestate, Edward George, was "lying down upon the tracks" of the defendant, and was run over by the train of the defendant moving in a southern direction, and the track of the defendant was straight, practically level and unobstructed from the place where the intestate was lying in a northern direction for approximately 1,500 yards, or three-fourths of a mile; the night was clear and fair; the train was travelling approximately 30 miles per hour and carried 25 cars; the headlight and brakes of the train were in proper order and the train could have been stopped within 300 or 400 feet; that the engineer did not see anybody on the track, but about 5:25 o'clock of the same morning he found particles of flesh on the "left back drive of the brake head of the engine."

Defendant's first contention that the evidence of the plaintiff tending to show that the intestate was lying down upon the track was incompetent, cannot be sustained. The evidence consisted of the testimony of Dr. J. R. Terry, the coroner, whom the court held to be a medical expert, and was to the effect that he went to the scene before the body of the intestate had been removed, and judging "from the nature, the condition and position of the wounds," he had an opinion satisfactory to himself that "the deceased was lying down upon the tracks at the time the same were inflicted." This evidence was competent under the authority of McManus v. R. R.,174 N.C. 735, where Hoke, J., says: "It was also urged for error that Dr. McCoy, a witness for plaintiff, who had made a professional examination of the intestate at the time, was allowed, over defendant's objection, to testify that, ``from the nature, condition and position of the wounds, he was of opinion that the intestate was lying down at the time the same was inflicted.' It will be noted that this witness, admitted to be an expert, spoke from a professional and personal examination of the intestate, and the answer, to our minds, was clearly within the domain of expert opinion. Both question and answer are approved and upheld, we think, in Ferebee v.R. R., 167 N.C. 290; Parrish v. R. R., 146 N.C. 125; S. v. Jones,68 N.C. 443."

In Henderson v. R. R., 159 N.C. 581, where the allegations were similar to those of the instant case, Allen, J., says: "The allegation of negligence in the complaint is that the deceased was down on the track in an apparently helpless condition, and that the engineer of the defendant could have discovered him in time to stop the train before reaching him, by the exercise of ordinary care. The burden was on the plaintiff to prove the truth of this allegation and to establish in the minds of the jury: (1) that the deceased was down on the track in an apparently helpless condition; (2) that the engineer could have discovered him in time to stop the train before reaching him, by the exercise of ordinary care; (3) that he failed to exercise such care, and as a direct result the deceased was killed."

Applying this statement of the law to evidence in the instant case, we have (1) the testimony of Dr. Terry that in his opinion the deceased was lying down upon the track at the time the fatal wounds were inflicted. This was sufficient to be submitted to the jury upon the first requisite laid down by the court.

As to whether (2) the engineer could have discovered the deceased in time to stop the train before reaching him, by the exercise of ordinary care, we have the evidence that the track was straight, level and unobstructed for three-quarters of a mile in the direction from which the train approached the deceased, the night was clear and fair, the train was running 30 miles per hour, and the brakes and headlight were in proper condition and the train could have been stopped within 300 or 400 feet. This was sufficient evidence to be submitted to the jury upon the second requisite laid down by the court. In Deans v. R. R., 107 N.C. 686 (696),Avery, J., in speaking to a state of facts similar to those of the instant case, says: "The jury were at liberty to exercise their own common sense and to use the knowledge acquired by their observation and experience in everyday life in solving the question whether the engineer, in the exercise of due diligence, might have discovered, from his elevated position on the engine, the fact that plaintiff's intestate was lying helpless across the rail, and whether putting his passengers in jeopardy. . . . Courts and juries acting within their respective provinces must take notice of matters of general knowledge and use their common sense where the evidence makes the issue of law or fact depend upon their exercise."

As to whether (3) the engineer failed to exercise ordinary care and as a result thereof the deceased was killed, we have the testimony of the engineer himself that he did not see the deceased, and all of the evidence tends to show that the engine struck, ran over and killed the deceased.

This was sufficient to carry the case to the jury upon the third requisite laid down by the court.

When we view the evidence in the light most favorable to the plaintiff, as we must do upon a motion to nonsuit, we are constrained to hold that his Honor erred in sustaining the demurrer to the evidence.

Reversed.