{
  "id": 8654838,
  "name": "I. C. NANCE et al v. NORFOLK SOUTHERN RAILROAD COMPANY",
  "name_abbreviation": "Nance v. Norfolk Southern Railroad",
  "decision_date": "1925-05-06",
  "docket_number": "",
  "first_page": "638",
  "last_page": "639",
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    "name": "Supreme Court of North Carolina"
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      "cite": "186 N. C., 476",
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      "cite": "178 N. C., 595",
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      "cite": "173 N. C., 427",
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      "cite": "137 N. C., 491",
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  "last_updated": "2023-07-14T21:40:32.095485+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "I. C. NANCE et al v. NORFOLK SOUTHERN RAILROAD COMPANY."
    ],
    "opinions": [
      {
        "text": "Adams, J.\nTbe plaintiffs bought a carload of horses and mules in Richmond, Virginia, and at 3 p. m., 28 March, 1923, delivered them to the Seaboard Air Line Railway for transportation to Troy, in Montgomery County. The stock arrived in Raleigh the next day at 6 p. m. and were delivered to the defendant for carriage to the place of destination. On 30 March, at 5 p. m., they were delivered to the plaintiffs. In a short time three of the mules died; others, it is asserted, were suffering with pneumonia.\nOn 29 May, 1923, the plaintiffs brought suit against the defendant to recover damages. The alleged cause of action is the defendant\u2019s negligent failure to care for the stock after the car was received by the defendant in Raleigh and before it was forwarded to Troy. Specifically, it was the alleged negligent keeping of the stock for several hours in an open stockyard without suitable nourishment and the negligent failure to protect the stock during this time from exposure to cold and rain. To support these allegations the plaintiffs introduced three witnesses who not only testified that sometime in May \u201cthe agent in the sta'tion\u201d at Raleigh pointed out to them the \u201cpen\u201d in which he said the stock had been confined when taken from the car, but informed them also as to the contents of an official record made more than a month before. These witnesses were then permitted to testify concerning the condition of the \u201cpen\u201d as they found it to be in May.\nThis evidence was incompetent. Tbe declarations of tbe agent were hearsay. \u201cOne of tbe most important of tbe rules excluding certain classes of testimony is tbat wbicb rejects hearsay evidence. By this is meant tbat kind of evidence wbicb does not derive its value solely from tbe credit to be attached to tbe witness himself, but rests also in part on tbe veracity and competency of some other person from whom tbe witness may have received bis information.\u201d Jones on Ev. (2 ed.), sec. 297; King v. Bynum, 137 N. C., 491; Chandler v. Jones, 173 N. C., 427; S. v. Springs, 184 N. C., 768. Tbe agent\u2019s statement to these witnesses was not competent as a declaration characterizing or qualifying an act presently done within tbe scope of bis agency and constituting a part of tbe res gestae; it was tbe narrative of a past event and, of course, inadmissible against tbe defendant. R. R. v. Smitherman, 178 N. C., 595, 599; Jones v. Ins. Co., 172 N. C., 142; Smith v. R. R., 68 N. C., 107.\nBut this error, otherwise ground for a new trial, was cured by tbe defendant\u2019s evidence. Tbe testimony of W. N. Wilson, defendant\u2019s clerk, corroborates tbe plaintiffs\u2019 witnesses as to tbe condition of tbe stockyard. True, there is no direct evidence tbat tbe witnesses referred to same place, but tbe main allegation of negligence relates to tbe condition, not tbe situation, of tbe \u201cpen,\u201d and as to this there is no substantial difference in tbe evidence.\nWe think, however, there was reversible error in tbe admission of Dr. Martin\u2019s answer to tbe hypothetical question put to him as an expert. Eis answer is almost identical with an answer wbicb was disapproved in Hill v. R. R., 186 N. C., 475. Tbe reasoning in tbat case, which need not be repeated now, applies with equal force to tbe defendant\u2019s exception to tbe question and answer in tbe instant case. For this error tbe defendant is entitled to a\nNew trial.",
        "type": "majority",
        "author": "Adams, J."
      }
    ],
    "attorneys": [
      "W. A. Cochran and B. T. Poole for plaintiffs.",
      "Armstrong & Armstrong for defendant."
    ],
    "corrections": "",
    "head_matter": "I. C. NANCE et al v. NORFOLK SOUTHERN RAILROAD COMPANY.\n(Filed 6 May, 1925.)\n1. Evidence \u2014 Principal and Agent \u2014 Declarations\u2014Hearsay\u2014Appeal and Error.\nStatements of the agent of a railroad company as to the condition of its stockyard, where injuries to plaintiff\u2019s shipment of stock is alleged to have been caused from-exposure in inclement weather, are not part of the res gestee when made after the alleged injury has occurred, and are incompetent as hearsay, but the error may be cured by defendant\u2019s further evidence or admissions on the subject.\n2. Evidence \u2014 Experts.\nHeld, in this case the evidence given by an expert in answer to hypothetical questions was incompetent, applying Sill v. R. R., 186 N. C., 476.\nAppeal by'defendant from Stack, J., at September Term, 1924, of MONTGOMERY.\nW. A. Cochran and B. T. Poole for plaintiffs.\nArmstrong & Armstrong for defendant."
  },
  "file_name": "0638-01",
  "first_page_order": 716,
  "last_page_order": 717
}