Davis v. Railroad Co.

Douglas, J.,

after stating tbe case. We see no error in the action of his Honor. The questions raised by the defendant have been so recently decided -and fully discussed that but little more can be said. The defendant insists that the Court should have found, as matter of law, that the plaintiff was not the owner of the cow. It is dear that the plaintiff, having bought the cow with his own money, became the owner thereof, and remained such owner unless there was a completed gift to his wife, which was a mixed question of law and fact for the determination of the jury. This question is directly decided in Gross v. Smith, 132 N. C., 604, where the Court says: “We think there was evidence sufficient to be submitted to'the jury upon the question of the parol gift. There can be no doubt that delivery of possession is essential to constitute a valid gift. ‘The necessity of delivery’ says Chancellor Kent, ‘has been maintained in every period of English law.’ 2 Kent Com., 438; 2 Blk., 441. But the question in this case is whether there was a delivery in fact. The declarations or admissions of the intestate and the other testimony are not conclusive upon that question, but the jury must find the fact of delivery from all of the evidence. * * * All courts hold that delivery is necessary to the validity of the gift, but the fact of delivery may be found by the jury from the acts, conduct and declarations of the alleged donor, just as any other material fact may be found in the same way from the acts, conduct and declarations of a party to be affected thereby. What is a gift is a question of law, but whether or not there was a gift in any particular case is a question for the consideration of the jury upon the testimony.” The defendant further contends that the Court should have held as matter of law that the prima facie case created by the statute had been .rebutted by the testimony of the defendant’s witness. This question is directly decided in Baker v. Railroad, 133 N. C., 31, wherein the Court says: “This was an action for negligently killing a horse. At the close of the evidence the defendant moved to nonsuit the plaintiff. The action was brought within six months, and the killing having been shown, the statute raised a presumption of negligence, and the burden to rebut such presumption being upon the defendant, the Judge could not find affirmatively that the defendant’s evidence had been sufficient to do this. This was a matter for the jury. The Judge could instruct the jury, as he did in this case, that a certain state of facts, if believed by them, would rebut the presumption, but not that certain evidence, though uncontra-dicted, would do so. The burden is on the defendant to rebut the presumption, and the jury alone can pass on its credibility; otherwise, if the only eye-witness is witness for the defendant, the plaintiff will be at his mercy and would be deprived altogether of the benefit of the statute because he did not happen to see the killing. It would be a novelty to nonsuit the plaintiff on the defendant’s evidence.” We gave careful consideration to both of the above-cited cases, and see no reason now to reverse our ruling.

The wife of the plaintiff was permitted to become a party to the action after verdict. This was proper to the extent of binding her by the verdict to the future exoneration of the defendant, but it would not relate bade to1 the bringing of the action so as to have the effect of raising in her favor the prima, facie case created by the statute. As she disclaims any interest in the subject-matter of the action we, do not see how the defendant can be injured in any way, especially in the view we take of the case.

The judgment is affirmed.