#### PAUL PRUITT v. SOUTHERN RAILWAY COMPANY.

(Filed 11 November, 1914.)

1. Trials — Verdicts—Motion to Set Aside — Courts—Discretion—Appeal and Error.

Motions to set aside a verdict on the ground that it is against the weight of the evidence should be addressed to the conscience and sound discretion of the trial judge, and will not be considered on appeal, in the absence of the abuse of this discretionary power.

*2472. Railroads — Inspection of Trains — Unusual Conditions — Projections from Trains — Injury to Pedestrians — Trials—Questions for Jury.

A railroad company is fixed with knowledge of whatever a careful inspection of its trains will disclose, and the burden is upon it to show that a proper inspection had been made, which failed to discover an unusual condition causing an injury, the subject of an action; and the evidence in this case tending to show that while the plaintiff was standing alongside the defendant’s track at a crossing, and where he had a right to be, waiting the passage of its train, some unusual projection 4 or 5 feet from the side of the train struck his knee and hurled him beneath the train, to his injury, the question of defendant’s actionable negligence is one for the jury under a proper instruction from the court. The charge in this case is approved.

Appeal by defendant from Devin, J., at June Term, 1914, of. Rock-INGHAM.

Tbis is a civil action to recover damages for a personal injury. Tbe issues of negligence and damage only were submitted. From tbe verdict and judgment for plaintiff, defendant appealed.

P. ~W. Grlideivell and G. 0. McMichael for plaintiff.

Manly, Hendren & Womble for defendant.

BkowN, J.

Tbe testimony of tbe plaintiff tends to prove tbat on tbe nigbt of 18 October, 1912, while standing at a public crossing in tbe town of Reidsville, some 3 or 4 feet from tbe track, waiting for a freight train to pass, be was struck about tbe knee by some projecting object tbat protruded from tbe side of tbe train, and was burled from bis feet; thrown under tbe train, and bis arm was cut off by tbe wheels; tbat tbis object was at tbe end of a car and projected some 4 feet from side of tbe ear.

Tbe plaintiff further testifies tbat be beard tbis projection rattling, and tbat be stepped one foot out of tbe way, and before be could get tbe other out of tbe way, it caught him about tbe knee and pulled him under a car and bis left arm was cut off at tbe shoulder.

It is argued tbat the projecting object was a loose end of tbe rubber piping of an automatic brake with an iron catch on tbe end.

There are two assignments of error, viz.:

1. Tbe court charged tbe jury as follows: “If you shall find by the evidence and its greater weight tbat tbe railway company operated a freight train south through Reidsville with a rod or other unusual projection extending out from said car for a distance of 3 or 4 feet, near tbe ground; tbat tbe defendant knew or by reasonable diligence could have known of such projection, and if you further find from tbe evidence and its greater weight tbat such projection caught plaintiff and drew him under tbe train, tbat bis injuries were sustained thereby, it would be your duty to answer tbe first issue ‘Yes.’ ”

*2482. The court refused to give defendant’s prayer for instruction as follows: “There is no sufficient evidence that the defendant either knew or should have known of the projection which the plaintiff says caught his leg, and you will answer the first issue ‘No.’ ”

There was much evidence offered by the defendant tending to contradict the jdaintiff, and the dispatcher’s train sheets were offered to prove that no freight train passed the crossing as stated by plaintiff.

The discussion in the briefs as well as the argument seems to be based upon the idea that this Court will set aside a verdict if it is against the weight of the evidence. Our previous declarations' should leave no doubt that we exercise no such power. It is a matter for the conscience and sound discretion of the Superior Court judge.

There is no suggestion here of an abuse of that discretion. That the evidence of the plaintiff, if taken to be true, makes out a case of negligence, the proximate cause of plaintiff’s injury, is too plain for argument. The plaintiff was where he had a right to be, at a public crossing, waiting for the freight train to pass. He was standing at a safe distance to avoid injury. He was not required to be on the lookout for a projecting object, such as is described. -This projection fastened itself into his knee and pulled him under the train.

The plaintiff was not required to prove that the defendant knew of such projection and failed to remove it. The defendant is fixed with a knowledge of whatever a careful inspection of its trains will disclose. The burden of proof is on the defendant to prove that it made proper inspection and failed to discover this unusual and extraordinary pro-jectiqn, whatever it may have been. Failure to make proper inspection is negligence. Wharton on Negligence, secs. 3, 29. “The duty of inspection is said to be affirmative, and must be continuously fulfilled and positively performed.” Brann v. Chicago, R. I. and Pac. Ry., 53 Iowa, 597; Bailey’s Pers. Inj., sec. 2638; Cotton v. R. R., 149 N. C., 231.

The assignments of error cannot be sustained.

No error.