Fleming v. Washington & Vandemere Railroad

84 S.E. 270, 168 N.C. 248, 1915 N.C. LEXIS 24

• Court: Supreme Court of North Carolina
• Decided: February 17, 1915
• Status: Published

Opinion

Walker, J".,

after stating the facts: The judgment of the court was manifestly correct. There was no presumption or prima facie case of negligence, under the statute, Revisal, sec. 2645, as the action was not commenced within six months after the animal was killed, and it is provided therein that “no person shall be allowed the benefit of this section unless he shall bring his suit within six months after his cause of action shall have accrued.” He offered no legal excuse for his delay in suing. That some one, without authority to represent the railroad, told him that an action would not be necessary, was no excuse. The defendant is not responsible for the statements or opinions of any one not authorized to speak for it. Besides, the plaintiff’s delay continued for more than two years without any explanation. Why, if he was relying upon the statement of his informant, did he not press the matter to a conclusion sooner than he did, and if settlement was refused, then bring his suit ? Excluding the presumption from consideration, as inapplicable, the case is brought directly within the decision in Seawell v. R. R., 106 N. C., 272, which is very much like this case. The facts, as stated by the engineer, who was plaintiff’s own witness, show that he complied in every respect with the most rigid and exacting rule, as laid down by this Court, in regard to the duty of an engineer to keep a proper lookout for obstructions on the track, and as said by Justice Davis in Seawell’s case: “If the facts testified to by the engineer be accepted as true, there was no negligence on the part of defendant.” The cases of Forbes v. R. R., 76 N. C., 454; Winston v. R. R., 90 N. C., 66, and Proctor v. R. R., 72 N. C., 579, strongly support this view, and hold that even when an action is brought within the six months, it makes out only a prima facie- case and is not conclusive, and that upon evidence similar to that in this case, and not more favorable to the defendant, there is no negligence, and consequently no liability.

The statement of the unidentified person was not any evidence of negligence, and no more competent to prove it than it is to show a legal excuse for the delay. It was simply the expression of an opinion emanating from one not in privity with defendant and having no authority to bind it in any way, so far as appears. In one of its aspects — that is, as proof of negligence — it was the statement of a past transaction, and not a part of the res gestee, and for that reason doubly incompetent. Rumbough v. Improvement Co., 112 N. C., 752; McEntyre v. Cotton Mills, 132 N. C., 598; Robertson v. Lumber Co., 165 N. C., 4.

The motion for a new trial, based upon the ground of newly discovered evidence, was addressed to the discretion of the judge, and, having been denied by him, the decision is not reviewable here. Flowers v. Alford, 111 N. C., 248; Munden v. Casey, 93 N. C., 97.

No error.