Blevins v. Norfolk & Western Railway Co.

114 S.E. 298, 184 N.C. 324, 1922 N.C. LEXIS 82

• Court: Supreme Court of North Carolina
• Decided: November 8, 1922
• Status: Published

Opinion

Stacy, J.

Plaintiff’s cow was killed by defendant’s train on 2 December, 1920. It was tbe contention of tbe defendant tbat tbe billing was accidental, and tbat tbe train could not bave been stopped in time to bave prevented tbe injury. In reply to this, tbe plaintiff, as a witness in bis own bebalf, offered to testify witbin wbat distance tbe train— admittedly running from ten to fifteen miles an bour — could bave been stopped at tbat particular place. He stated tbat be was familiar with tbe track; tbat be bad often observed trains passing up and down tbe line; tbat there was a cut and a curve at tbe place where tbe cow was killed; and tbat be bad seen trains stop right near this particular point. There was also testimony to tbe effect tbat tbe engineer could bave seen tbe cow for a distance of four hundred feet. Upon objection, tbe witness was not allowed to answer, or to give bis proposed evidence. This ruling may bave been erroneous (Hanford v. R. R., 167 N. C., 277); but its materiality does not appear, as there is nothing on tbe record to show wbat tbe answer would bave been. Armfield v. R. R., 162 N. C., 24. Prejudicial error will not be presumed; it must be affirmatively established. In re Boss, 182 N. C., 478.

No error.