This is an action to recover damages for the alleged negligent killing of a horse and destruction of buggy and harness belonging to plaintiff.
Exceptions 1, 2 and 4 were for permitting the witness Capt. J. C. Walton, who testified that he had been long in the service of the defendant company and for many years conductor and knew the grade at the point where the accident occurred, to express his opinion that the train could have been stopped or slackened up at that point, it being an up grade, in a very short distance.
The uncontradicted evidence was that the horse was hitched in front of the house, when, becoming frightened, he broke loose and ran with the buggy attached down the road nearly parallel to the railroad track and tried to cross just in front of the engine. There was evidence tending to show that he was struck just before he cleared the track, and evidence of the defendant tending to show that he ran into the engine. There was *Page 320 evidence on the part of the plaintiff that there was no attempt made to slacken speed, though the engineer could have thereby prevented the injury. There was evidence for the defendant that there was an attempt to slacken speed, and that the collision was unavoidable. This presented a question of fact for the jury, and the nonsuit was properly denied. Nor was there any error in admitting the testimony of Captain Walton. Indeed, we have many cases that any one is competent to give his opinion as to the distance in which a train can be stopped. Blue v. R. R., 117 N.C. 644; Davis v. R.R., 136 N.C. 117. The jury can form their own opinion as a matter of common knowledge. Davis v. R. R., supra; Wright v. R. R., 127 N.C. 227;Lloyd v. R. R., 118 N.C. 1013; Deans v. R. R., 107 N.C. 693; Draper v.R. R., 161 N.C. 314. In fact, Captain Walton spoke from his own knowledge of the grade, and from his experience as a railroad employee.
(279) The defendant contends that the presumption of negligence in killing live stock, when the action is brought within six months, does not apply where the facts were known. But such is not the case, Nor is the presumption rebutted from the fact that the horse was attached to the buggy. The statute (Rev., 2645) contains no such exception. This matter was fully discussed and decided in Randall v. R. R., 104 N.C. 410, and was again fully discussed and reaffirmed on the rehearing of the same case, 107 N.C. 748, in which it was held that the "The presumption arises from the fact of killing, whether the animal was hitched to a wagon or cart as well as where it is running at large."
The defendant also relied upon Barnes v. Public-service Corp.,163 N.C. 365, which held that the railroad company is not responsible for damages occurring to travelers along the road in consequence of their teams taking fright at the noises ordinarily made by the operation of such trains. That case would be in point if this action was for frightening the animal whereby he ran away and was injured by running into danger. But it has no application here, where the charge is not that the noise of the train frightened the animal and caused him to run, but because, as the jury have found, he was injured by collision with the train, which could have been prevented by the train slackening its speed.
In Hines v. R. R., 156 N.C. 226, Allen, J., citing the opinion ofHoke, J., in Snipes v. Mfg. Co., 152 N.C. 46 says: "The right of the plaintiff to maintain his action must be determined by the conduct of the parties after the time the horse began to kick, and if the evidence presents a phrase upon which the jury could find that the engineer, by keeping a lookout, could by the exercise of ordinary care have seen that a collision was imminent in time to stop his train and avoid it, the plaintiff could recover, notwithstanding the failure of the driver to look and listen at the crossing." This is almost in the exact language of *Page 321 Brinkley v. R. R., 126 N.C. 91, which has been repeatedly cited since. See citations in Anno. Ed.
The defendant also excepted to the submission of the third issue: "Notwithstanding plaintiff's negligence, could the defendant company, by the exercise of ordinary care, have prevented the injury sustained by the plaintiff?" This third issue was recommended, Denmark v. R. R.,107 N.C. 189, and in many cases since. See Anno. Ed. The two other exceptions were addressed to the charge upon this issue. There was in this, as in other respects,
No error.
Cited: Hopkins v. R. R., 170 N.C. 486 (1c); Borden v. R. R., 175 N.C. 179 (2j); Blevins v. R. R., 184 N.C. 325 (1p).