Hygienic Plate Ice Manufacturing Co. v. Raleigh & Gaston Railroad

Citations

• 122 N.C. 881

Syllabus

<p>Action for Damages — Railroads — Fires — Negligence and Contributory Negligence — Burden of Proof — Questions for Jury — Non-Suit under Hinsdale’s Act. ,</p> <p>1. Where, in an action for damages resulting from the alleged negligence of the defendant, contributory negligence is relied upon as a de-fence, the burden of the issue is upon the defendant and the Court cannot direct an affirmative finding thereon.</p> <p>2. While, in an action for damages resulting from alleged negligence and in which contributory negligence is pleaded as a defence, a motion to non-suit the plaintiff at the close of his evidence, under chapter 109, Acts of 1897, is in the nature of a demurrer to the ev- ■ idence and admits its truth, the trial Judge cannot grant such motion if the evidence he such as that reasonable men might fairly and reasonably draw different conclusions therefrom for, in that case, it should be left to a jury.</p> <p>3. Whenever it is ne'cessary to introduce extrinsic evidence to establish the fact that a defendant caused the injury complained of in an action for damages, the doctrine of “res ipsa loquitur” does not apply.</p> <p>4. Where, in the trial of an action for damages resulting from the alleged negligence of defendant railroad company, it appeared that plaintiffs ice plant was situated twenty feet north of defendant’s track; that about!) o’clock p. m., defendant’s train passed emitting from the locomotive large quantities of sparks as large as a man’s finger, that the weather was dry and the wind was from the south and that fire was discovered on the southwest corner of the roof about fifteen minutes after the train passed; Held, that it was error to non-suit the plaintiff on the ground that there was no evidence of negligence, and, as the issue of contributory negligence was on the defendant and as a finding that there was such contributory negligence was an affirmative finding of fact which the Court was not authorized to make, the non-suit on the latter