There are several exceptions to evidence, none of which require extended discussion.
It was competent to prove that a man standing could be seen with an electric headlight 400 or 500 yards, for the purpose of showing the force of the headlight, as a circumstance upon the question within what distance the engineer could see a man down on the track, and it also appears that this fact was not in dispute, as a witness for the defendant testified: “How far you can see an object on the track with an electric headlight depends on how the object is. The size of a man standing up, you could see 400 or 500 yards.”
The question asked the witness for the plaintiff, “How far would you say, then, that it would take to .stop a passenger *312train after it began to stop?” and bis answer, “Seventy-five yards,” ought to have been excluded, unless it is assumed that the question and answer were based on the facts in evidence as to the speed of the train, its length and weight, and the condition of the track; but the whole evidence of this witness shows that the opinion he expressed could not have influenced the verdict.
He said on cross-examination, “that he had seen trains stop with emergency air-brakes, but he could not give an instance nor had he ever measured the distance from the application of the brake to the stopping place of the train. The train upon which he saw the emergency brakes applied was a light Seaboard train, running not over 20 or 25 miles an hour, and he knew nothing at all about how long it would take the emergency air-brakes to stop a heavy Pullman train, running 30 or 40 miles an hour. He had never ridden on an Atlantic Coast Line train.”
The answer of the witness for the plaintiff, that the train which killed the intestate, properly equipped, and at the speed it would attain from Weldon to the place of the killing, could be stopped 200 yards, was competent, but if not, this was a fact the defendant was endeavoring to establish, and the engineer and the conductor testified that the train could be stopped within 200 yárds.
The eleventh exception is to the failure to charge that the evidence of the engineer as to when he did or could discover the intestate was positive evidence, while the testimony of the plaintiff’s witness on this question was not positive. The form of the prayer for instruction shows the difficulty confronting the defendant’s counsel. He was endeavoring to 'contrast positive and negative testimony, and while he asserted that the evidence of 'the engineer was positive, he was not willing to commit himself to the statement that the evidence of the plaintiff’s witness was negative.
We fail to. see the distinction attempted to be drawn, and are of opinion that the evidence of. an engineer that he could or could not have discovered within a certain distance, belongs to *313tbs same class with that o£ another witness, who testifies to the same fact, and that the only difference between the two is that the jury may consider the better opportunity of the engineer to know.
The thirteenth assignment of error cannot be considered, because it is based on alleged error in a part of the charge, to' which there is no exception in the case on appeal. Worley v. Logging Co., 157 N. C., 498.
The fourteenth assignment of error is to the concluding sentence in the charge on damages: “You have a right to give this man $500, $2,000, or any amount that you may come to the conclusion that he is entitled to recover, basing your findings upon the evidence in the ease as you see it, not exceeding $2,000.”
Standing alone, this charge would be objectionable, because it furnishes no rule for the admeasurement of damages, but it must be considered in connection with other parts of the charge, and immediately before the sentence quoted the court charged the jury, clearly and at length, as to the correct rule of damages, to which no exception was taken.
This disposes of the exceptions relied on in the brief of the defendant, except those relating to the motion to nonsuit.
The burden was on the plaintiff to establish three facts:
1. That the intestate of the plaintiff was killed by the train of the defendant.
2. That at the time of the killing the intestate was down on the track in an apparently helpless condition.
3. That the defendant, by the exercise of ordinary care, could have discovered the intestate in time to stop the train and avoid the killing.
The first fact was admitted, and there was ample evidence to sustain a finding in favor of the plaintiff on the second. The third was in more doubt, and while we think, on the whole evidence, the jury might have found this in accordance with the contention of the defendant, we cannot say there is no evidence to support a finding in favor of the plaintiff.
According to the evidence of the defendant, the train could be stopped within 200 yards, and the engineer testified that he *314discovered it was a man on tbe track when 165 yards distant. It was also in evidence that a man standing could be seen by the aid of the electric headlight 400 or 500 yards.
If so, was it not a reasonable inference that the engineer could have discovered that there was an obstruction on the track more than 200 yards away, and that if he had then gotten the train under control he could have stopped it in time to avoid the killing, after he discovered it was a man ?
Again, the jury was not bound by the opinion of witnesses as to the distance within which the train could be stopped, and had the right to consider the evidence of the condition of the track, the grade, the length and weight of the train, the speed and other relevant circumstances in connection with these opinions, and from the whole evidence to determine within what distance it could be stopped. Wright v. R. R., 127 N. C., 226; Davis v. R. R., 136 N. C., 117.
If so, there was evidence that the train could be stopped in less than 200 yards, and in time to avoid the killing.
The motion for judgment of nonsuit was properly overruled, and on the whole case we find no reversible error.
No error.