#### ROSA L. JONES, admrx., v. ATLANTIC AND NORTH CAROLINA RAILROAD COMPANY.

(Filed 5 March, 1907).

Negligence — Evidence—Nonsuit.—The mere killing by a railroad train of an employee engaged in its operation raises no presumption of negligence, and a judgment of nonsuit was proper when the witness for plaintiff testified, without other evidence as to negligence of the defendant, that he and plaintiff’s intestate brought a turn of wood to the shanty-car of the train; that the witness remained thereon, the plaintiff's intestate went back with the apparent intention of bringing another turn; the train started and went forward after the usual signals were given therefor, and that the plaintiff’s intestate was killed; as such does not establish sufficient facts from which actionable negligence could be inferred.

Civil actioN to recover damages for alleged negligent killing of plaintiff’s intestate, tried at October Term, 1906, of Ce-avee Superior Court, before Shan', J.} and a jury. At the close of tbe plaintiff’s evidence and on motion of defendant tlie action was dismissed as on judgment of non-suit, and the plaintiff excepted and appealed.

D. L. Ward for plaintiff.

Simmons, Ward & Allen for defendant.

Hoke, J.

There is no presumption of negligence arising against a railroad company from the mere fact that an employee has been killed while engaged in the operation of one of its trains, without any proof ultra tending to show negligence on the part of the company or establish facts from which such negligence, could be reasonably inferred. 6 Thomp. Com. Law Neg., sec. 7652. An application of this principle to the facts of the present case will fully sustain the ruling of his Honor in dismissing the action.

The deceased was -conductor in charge at the time of one of the defendant’s freight trains, which had stopped at some *80point on tbe road to- take on blocks of wood — presumably for use in tbe defendant’s “shanty-car.”

Ben Merritt, a brakeman$ and the only witness wbo testified as to the occurrence, said tbat “be and the deceased eacb got a turn of wood, and the witness put bis on the shanty-car and remained upon the car; tbat the captain (the deceased) started back towards the pile, apparently intending to-get another turn of Avood, and tbat in a short time the train started, after having given the usual signals for doing so, and soon thereafter the deceased was found at or near the Hack,” having been run over and fatally injured by the train. Tbe witness said tbat after the captain started toAvard the pile, be (the witness) was not in a position to see farther, and did not know where the deceased was when the train started — whether he was on or off the train, nor whether be bad or bad not given the engineer the signal to start. There is nothing, therefore, which shows or tends to show actionable negligence against the company, nor facts from which such-negligence could be reasonably inferred, except the mere fact tbat the deceased, an employee of the company, was run over and killed by the defendant’s train.

Tbe ruling of tbe Judge below, therefore, must be sustained.

Affirmed.