#### SARAH SKIPPER, Administratrix, v. KINGSDALE LUMBER COMPANY and CHARLESTON RAILROAD COMPANY.

(Filed 27 March, 1912.)

1. Appeal and Error — Concise Statement — Stenographer’s Notes— Practice.

When the appellant has set out in the case on appeal the transcribed stenographer’s notes of the trial, he fails to prepare “a concise statement of the ease as required by the Revisal, 591,” and his appeal will be dismissed under Rule 22 of the Supreme Court, when upon examination no error is found in the record proper.

2. Same — Nonsuit—Suit in Forma Pauperis.

When an appeal is taken by defendant from an overruling of its motion to nonsuit upon the evidence, the evidence should be sent up in a narrative form, and the requirement that all the evidence should be sent up on appeals of this character, though the action is -in forma pauperis, does not excuse the appellant in sending up the transcribed stenographer’s notes in a voluminous record. The object of an opinion by the Supreme Court discussed by Clark, C. J.

3. Master and Servant — Collision—Presumptions—Evidence—Negligence.

When it is shown that an employee of rf railroad company was killed in a collision on defendant’s road while engaged in the performance of his duties, a presumption of negligence is raised, and a nonsuit upon the evidence should not be granted.

*323Appeal by defendant from Garter, J., at December Term, 1911, of EobesoN.

Tbe facts are sufficiently stated in tbe opinion of tbe Court by Mr. Chief Justice Clark.

Thomas L. J ohnson and H. F. Seawell for plaintiff. ■

Rountree Carr, R. C. Lawrence, and McLean, Varser & McLean for defendants.

Olaeb:, C. J.

Tbe plaintiff moves to dismiss because tbe case on appeal bas not been settled in tbe manner required by Ee-visal, 591, wbicb requires tbat tbe appellant “shall cause to be prepared a concise statement of tbe case on appeal.” Instead of tbat, tbe entire evidence from tbe stenographer’s notes, covering 157 printed pages, bas been dumped into the record in tbe form of question and answer, though this bas been condemned in repeated decisions of this Court. Cressler v. Asheville, 138 N. C., 486, and numerous other cases. In Bucken v. R. R., 157 N. C., 443, Brown, J., said: “At tbe end of tbe stenographer’s notes is this entry: Tt is agreed tbat tbe record proper and stenographer’s notes shall constitute tbe case on appeal.’ There is no other attempt to make out a case on appeal, as required by law. This is in direct violation of tbe rule of this Court (No. 22) and of its express decision in Cressler v. Asheville, 138 N. C., 483. Tbat such of tbe evidence as is necessary to present tbe assignment of errors could easily have been stated in condensed narrative form is manifested by tbe fact tbat tbe counsel for plaintiff and defendants have set out in their respective briefs very clear and brief statements of tbe evidence, wbicb substantially agree. Under tbe circumstances of tbe case, we will make an exception and not dismiss tbe appeal, but we will be compelled to do so in future, unless our rule is observed.”

Tbe defendant seeks to excuse itself upon tbe ground:

1. Tbat this being a nonsuit, it was necessary to set out all tbe evidence. Even if it were so, tbat would not excuse setting out tbe evidence in form of question and answer. Besides tbe intestate of tbe plaintiff having been killed in a derailment, a prima facie case of negligence was made out and a nonsuit could not have been ordered. Wright v. R. R., 127 N. C., 229; Mar *324 com v. R. R., 126 N. C., 200; Kinney v. R. R., 122 N. C., 961; Grant v. R. R., 108 N. C., 470; Bird v. Leather Co., 143 N. C., 284.

2. Tbe defendant contends that as the plaintiff sues in forma pauperis, tbe costs of tbe extra record and printing could in no event be taxed against tbe plaintiff. But tbis does not excuse tbe nonobservanee of tbe rules of tbe Court, nor justify dumping an unnecessary volume of matter upon tbe Court and tbe opposite counsel for examination.

In accordance witb wbat was laid down in Bucken v. R. R., supra, we must dismiss- tbe appeal, or, rather, affirm tbe judgment, there being no error on tbe face of tbe record proper; but, nevertheless, at tbe request of counsel for defendant, we have carefully examined tbe entire record and tbe assignments of error.

There were seventy-seven exceptions taken, which in tbe assignments of error are reduced to fifty-two and in tbe defendant’s brief are still further reduced to twenty-one. Forty-seven of tbe exceptions were to tbe admission of evidence, some of which are based upon objections entered by plaintiff and not by defendant. "We do not find that any of them require discussion. Tbe exceptions for failure to nonsuit and to set aside the verdict were properly abandoned. Tbe six exceptions for 'refusal of tbe court to instruct tbe jury as requested by defendant cannot be sustained. McNeill v. R. R., 130 N. C., 256. If granted, they would have required of tbe plaintiff an unusual and highly-technical proof of the negligence of the defendant. Tbe eighteen exceptions to tbe charge of tbe court are also without merit.

Tbe object of an opinion is to lay down a rule for tbe guidance of trial judges and of counsel in other cases. There can be no- benefit in cumbering our reports witb the discussion of exceptions in matters that are plain or that have already been repeatedly passed upon by tbe Court. Such excexotions bear testimony to tbe earnestness and zeal of counsel, but when we find, upon careful examination, that the discussion of tbe assignments of error set out in tbe record would present no new principle nor a new application of an old one, but will be' merely a *325recognition of what bas already been often decided, we feel tbat it is our duty to refrain. Counsel have done all in this ease tbat tbeir well-known ability could accomplish for tbeir client. Tbe intestate of tbe plaintiff was killed in a derailment wbieb, if tbe evidence was believed, was caused by a loose chain on a car which caught an obstruction as tbe train was in rapid motion, pulling out a sway-bar, which threw tbe car from tbe track, causing tbe wreck in which tbe defendant was instantly killed. There was no other theory advanced in tbe pleadings or on the trial, and tbe investigation, aside from well-settled principles of tbe law, presented only issues of fact, which the jury have determined.

Affirmed.