{
  "id": 8616017,
  "name": "BERTIE HUNSINGER, Administratrix of James R. Hunsinger, v. CAROLINA, CLINCHFIELD AND OHIO RAILWAY",
  "name_abbreviation": "Hunsinger v. Carolina, Clinchfield & Ohio Railway",
  "decision_date": "1927-12-14",
  "docket_number": "",
  "first_page": "679",
  "last_page": "682",
  "citations": [
    {
      "type": "official",
      "cite": "194 N.C. 679"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
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  "last_updated": "2023-07-14T17:26:29.544042+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "BERTIE HUNSINGER, Administratrix of James R. Hunsinger, v. CAROLINA, CLINCHFIELD AND OHIO RAILWAY."
    ],
    "opinions": [
      {
        "text": "Connor, J.\nIn her complaint in this action, plaintiff alleges \u201cthat on the morning of 7 June, 1925, at about 2:45 a.m., plaintiff\u2019s intestate, James R. Hunsinger, was down upon the track of defendant railroad company at a point near the depot of defendant at Forest City, N. C., and was stricken on said track by the northbound fast freight train of defendant and killed.\u201d\nAnswering said allegation, defendant says: \u201cIt is admitted that plaintiff\u2019s intestate was down on the track of the defendant company at a point near the depot of defendant at Forest City, and was stricken by a northbound train at some hour near the time alleged in said paragraph. It is denied that defendant killed plaintiff\u2019s intestate, but on the contrary, as defendant is informed and believes, and therefore alleges, the said intestate was dead on the track before the approach of said train.\u201d\nThe primary question involved in the first issue was whether or not the injuries inflicted by defendant\u2019s train upon the body of plaintiff\u2019s intestate caused his death. If defendant\u2019s train did not kill said intestate, plaintiff cannot recover in this action, notwithstanding defendant\u2019s negligence in the operation of its train, as alleged in the complaint. Defendant denies not only negligence in tbe operation of its train, but also that said train killed the deceased.\nUpon the trial there was evidence tending to show that the death of plaintiff\u2019s intestate was caused by defendant\u2019s train; that although down on the track at the time he was struck, he was not dead, but alive. On the contrary, there was evidence tending to show that prior to the time he was stricken by defendant\u2019s train he had received fatal injuries on his head, from which he had died before his body was placed on the track. In view of the sharp conflict in the evidence with respect to this phase of the case, it was for the jury to determine first, before considering the evidence pertinent to the' allegations of actionable negligence involved in the first issue, whether or not plaintiff\u2019s intestate was killed by defendant as contended by plaintiff. The law of this State forbids the judge from giving, in his charge to the jury, an opinion as to whether or not a fact is fully or sufficiently proven, that being the true office and province of the jury. C. S.; 564.\nWith respect to the first issue, the court charged the jury as follows:\n\u201cThe court further charges you, gentlemen of the jury, that if you find from the evidence and by its greater weight, that defendant\u2019s servants in charge of the engine either discovered, or by the exercise of ordinary care might have discovered plaintiff\u2019s intestate lying on the track in an apparently helpless condition, and that defendant\u2019s servants in charge of the engine could, by the exercise of ordinary care, have stopped the train and avoided the accident after seeing the plaintiff\u2019s intestate in a place of peril, or if they could have seen him by the exercise of ordinary care and that plaintiff\u2019s intestate was killed by reason of and as a proximate result of the failure of defendant\u2019s servants and agents to stop such train after they saw or could have seen plaintiff\u2019s intestate lying on the tracks, then, gentlemen of the jury, the court charges you it would be your duty to answer the first issue \u2018Yes,\u2019 but if plaintiff has failed to satisfy you by the greater weight of the evidence of these facts, then it is your duty to answer the issue \u2018No.\u2019 If you answer the first issue \u2018No,\u2019 that is, that plaintiff\u2019s intestate was not killed by the negligence of the defendant company, you need not answer the other issues at all, as that ends the case, but if you answer the first issue, \u2018Yes,\u2019 you will proceed to the consideration of the second issue.\u201d\nWith respect to the second issue, the court charged the jury as follows :\n\u201cThe court charges you that under the pleadings and evidence in this ease it is your duty to answer this second issue \u2018Yes,\u2019 as the plaintiff sets forth the fact that her husband was at the time intoxicated or under the influence of some drug, and in such condition that he went upon the track and became in a helpless condition while on the track.\u201d\nDefendant\u2019s assignments of error, based upon exceptions to these instructions, must be sustained. \"While defendant denied the allegations of actionable negligence in the complaint, and offered evidence tending to contradict the evidence offered by plaintiff, in support of these allegations, its defense was based primarily upon its denial that plaintiff\u2019s intestate was killed by its train. These instructions are predicated upon the fact that the death of the deceased was caused by the train, and if this fact had been admitted or found by the jury, are correct. But this primary fact was sharply controverted, and there was evidence from which the jury might have found the facts to be, not as contended by plaintiff, but as contended by defendant. We do not find anywhere in the charge of the court to the jury, which is set out in full in the case on appeal, that the controversy as to this matter was clearly submitted to the jury.\nThe evidence in support of plaintiff\u2019s contention that deceased was intoxicated, or under the influence of a drug, immediately prior to his being stricken by the train, and was down upon the track in this condition, was to say the most, very slight. There is, indeed, no evidence that he was under the influence of a drug; there is evidence that he had taken a drink of whiskey, during the evening before he was found upon the track, between two and three o\u2019clock in the morning, dead, with wounds upon his head, and with his body cold. There is no evidence from which the jury could find that he drank whiskey or other intoxicant, after he had returned home from the swimming pool. In the meantime he had driven a Ford car, with plaintiff, his wife, as a passenger, some eight or ten miles to her father\u2019s home, and after his return to his home, had shaved himself, shortly before his dead body was found on the track. There was other evidence tending to show that he was sober, and not drunk, within a half hour before he was found dead. There was evidence, which should have been submitted to the jury for its consideration, under proper instructions, tending to show that plaintiff\u2019s intestate was dead at the time his body, lying upon defendant\u2019s track, was struck by its train. The evidence tending to show defendant\u2019s liability for the death of deceased, because of its negligence as the proximate cause of his death, did not become pertinent, until the jury had first found that defendant killed the deceased.\nWe do not deem it necessary to discuss other assignments of error appearing in the case on appeal. For the errors assigned and sustained upon this appeal the defendant is entitled to a\nNew trial.",
        "type": "majority",
        "author": "Connor, J."
      }
    ],
    "attorneys": [
      "W. C. McRorie .and Rybum & Hoey for pla&ntiff.",
      "J. J. McLaughlin, Pless, Winbome, Piesa & Proctor and Fred D. Hannah for defendant."
    ],
    "corrections": "",
    "head_matter": "BERTIE HUNSINGER, Administratrix of James R. Hunsinger, v. CAROLINA, CLINCHFIELD AND OHIO RAILWAY.\n(Filed 14 December, 1927.)\nNegligence \u2014 Contributory Negligence \u2014 Last Clear Chance \u2014 Railroads \u2014 AVrongful Death \u2014 Pact of Killing \u2014 Instructions.\nIn an action against a railroad company for the negligent killing in the night of the plaintiff\u2019s intestate by the defendant\u2019s train running over him while lying apparently helpless upon the track, involving the issues of negligence, contributory negligence and the last clear chance, in which both in the pleadings and by the evidence it is controverted as to whether the intestate was dead at the time the train struck him, the fact as to whether lie was killed by tb\u00e9 train should first be determined by the jury, and a charge that fails to instruct the jury as to the law arising from the evidence in the case is reversible error to the defendant\u2019s prejudice.\nAppeal by defendant from McElroy, J., at April Term, 1927, of ClevelaNd.\nNew trial.\nAction to recover damages for death of plaintiff\u2019s intestate alleged to have been caused by the negligence of defendant.\nThe issues were answered by the jury as follows:\n1. Was plaintiff\u2019s intestate killed by the negligence of the defendant as alleged in the complaint? Answer: Yes.\n2. Did plaintiff\u2019s intestate, by his own negligence, contribute to his death, as alleged in the answer? Answer: Yes.\n3. Notwithstanding the negligence of plaintiff\u2019s said intestate, could the defendant, by the exercise of ordinary and reasonable care, have avoided killing the said James R. Hunsinger? Answer: Yes.\n4. What damages, if any, is the plaintiff entitled to recover of the defendant? Answer: $15,000.\nFrom judgment upon the verdict defendant appealed to the Supreme Court.\nW. C. McRorie .and Rybum & Hoey for pla&ntiff.\nJ. J. McLaughlin, Pless, Winbome, Piesa & Proctor and Fred D. Hannah for defendant."
  },
  "file_name": "0679-01",
  "first_page_order": 747,
  "last_page_order": 750
}