Clark vs. W. N.C. R. R., 1 Winst., 109, cited and approved. It was in evidence that the rail road of the defendant ran through the enclosed pasture lands of the plaintiff, that there was a continuous grade on the lands from and through the pasture to the depot, about a half mile distant. That two empty cars were coupled together, and left standing on the grade or inclination all night, the upper car being chocked with a stick of wood. On the next day the lower car was found to have run down the grade and killed the mule of the plaintiff, the upper car still standing and chocked. The calf had been killed a month previous by a car left on the grade, but there was no evidence as to how the car was left.
A witness testified that a man could kick out the chock, and with his hand start a car to running, and being started, it *Page 344 would run of its own motion with accelerated velocity over the grade for more than a half mile.
Another witness testified, without objection, that he had been long employed on Railroads, and according to the usage of building roads he considered it a proper and suitable grade. This grade was on the main track, and it was in evidence that the Company generally left their empty cars standing on the grade and not on any turnout.
Witness testified that turn-outs could be constructed where empty cars could securely rest without chocking or coupling, but at considerable cost.
The Court charged the jury, that if the car was so left on the main tract and grade, that one man could uncouple it and by his single arm, could and did start it running down the grade whereby the mule and calt were killed, it was negligence.
Verdict for plaintiff. Rule for venire de novo. Rule discharged. Judgment for plaintiff. Appeal by defendant. The railroad track of the defendant passes through the pasture lands of the plaintiff for a half mile, with a descending grade. The mule and calf belonging to the plaintiff were killed by cars which in some way were set in motion and run down the grade.
By presumption of law (Act 1857, ch. 7) the defendant was guilty of negligence, and this presumption could only be rebutted by showing that the agents of the defendant had used all proper precaution to guard against the damage. It was sufficient to prove that there was probably no negligence.Clark v. W. N.C. R. R. Co, 1 Winston, 109.
Independant of the legal presumption, the evidence in this case showed gross negligence on the part of the agents of the defendant. *Page 345
The cars were left on an inclined plane where they could be easily set in motion — and they were very insecurely fastened. The calf was killed a month before the mule, by a car which had escaped from the fastening and run down the grade; and the agents of the defendant were thus apprised of the danger of such accidents, and they did not use proper precaution to prevent future injury.
There was no error in the charge of His Honor and the judgment be affirmed.
PER CURIAM. Judgment affirmed.