#### T. B. CURTIS, Administrator, v. SOUTHERN RAILWAY COMPANY et al.

(Filed 23 December, 1909.)

1. Questions for Jury.

In this ease tbe issue as to negligence was one entirely of facts, with tbe burden of proof on defendant, and no error is found to bave been committed on tbe trial.

2. Measure of Damages.

In this case no error is found on tbe part of tbe lower court upon tbe issue of damages, as upon tbe evidence tbe damages awarded were proper upon defendant’s own theory.

Clark, C. J., did not sit on the bearing of this ease.

Appeal from J osepb S. Adams, J., September Term, 1909, of BUNCOMBE.

Civil action, to recover damages on account of tbe negligent killing of plaintiff’s intestate, B. Allen Bryant, a passenger, who was admitted to bave been killed in a collision between a passenger and freight train of defendant company, alleged to bave been caused by tbe negligence of tbe defendant Leonard, a brakeman in tbe company’s employment.

The two issues of negligence and damage were submitted and found for tbe plaintiff. Tbe defendant appealed.

Zeh. F. Curtis and Craig, Martin & Thompson for plaintiff.

Moore & Rollins and W. B. Rodman for defendant.

*524Per Curiam: :

1. In respect to tlie issue of negligence, the matter in controversy is one of fact purely, with, the burden upon the defendants to show that they discharged their duty to the passenger, and we find no error committed on the trial of it.

2. In respect to the assignment of error in the charge of the judge upon the issue of damage, we are of ojiinion that it is unnecessary to |>ass upon or discuss it. The evidence in regard to the net earnings of the deceased, and his age and condition in life, business, etc., is uncontradicted, and we think that it fully warrants the sum awarded by the jury, even if it be gauged with reference to the theory contended for by defendant.

No error.

The Chief Justice did not sit on the hearing of this case.