Nance v. Norfolk Southern Railroad

Adams, J.

Tbe plaintiffs bought a carload of horses and mules in Richmond, Virginia, and at 3 p. m., 28 March, 1923, delivered them to the Seaboard Air Line Railway for transportation to Troy, in Montgomery County. The stock arrived in Raleigh the next day at 6 p. m. and were delivered to the defendant for carriage to the place of destination. On 30 March, at 5 p. m., they were delivered to the plaintiffs. In a short time three of the mules died; others, it is asserted, were suffering with pneumonia.

On 29 May, 1923, the plaintiffs brought suit against the defendant to recover damages. The alleged cause of action is the defendant’s negligent failure to care for the stock after the car was received by the defendant in Raleigh and before it was forwarded to Troy. Specifically, it was the alleged negligent keeping of the stock for several hours in an open stockyard without suitable nourishment and the negligent failure to protect the stock during this time from exposure to cold and rain. To support these allegations the plaintiffs introduced three witnesses who not only testified that sometime in May “the agent in the sta'tion” at Raleigh pointed out to them the “pen” in which he said the stock had been confined when taken from the car, but informed them also as to the contents of an official record made more than a month before. These witnesses were then permitted to testify concerning the condition of the “pen” as they found it to be in May.

*639 This evidence was incompetent. Tbe declarations of tbe agent were hearsay. “One of tbe most important of tbe rules excluding certain classes of testimony is tbat wbicb rejects hearsay evidence. By this is meant tbat kind of evidence wbicb does not derive its value solely from tbe credit to be attached to tbe witness himself, but rests also in part on tbe veracity and competency of some other person from whom tbe witness may have received bis information.” Jones on Ev. (2 ed.), sec. 297;

King v. Bynum, 137 N. C., 491 ;

Chandler v. Jones, 173 N. C., 427 ;

S. v. Springs, 184 N. C., 768 . Tbe agent’s statement to these witnesses was not competent as a declaration characterizing or qualifying an act presently done within tbe scope of bis agency and constituting a part of tbe res gestae;

it was tbe narrative of a past event and, of course, inadmissible against tbe defendant.

R. R. v. Smitherman, 178 N. C., 595, 599 ;

Jones v. Ins. Co., 172 N. C., 142 ;

Smith v. R. R., 68 N. C., 107 .

But this error, otherwise ground for a new trial, was cured by tbe defendant’s evidence. Tbe testimony of W. N. Wilson, defendant’s clerk, corroborates tbe plaintiffs’ witnesses as to tbe condition of tbe stockyard. True, there is no direct evidence tbat tbe witnesses referred to same place, but tbe main allegation of negligence relates to tbe condition, not tbe situation, of tbe “pen,” and as to this there is no substantial difference in tbe evidence.

We think, however, there was reversible error in tbe admission of Dr. Martin’s answer to tbe hypothetical question put to him as an expert. Eis answer is almost identical with an answer wbicb was disapproved in Hill v. R. R., 186 N. C., 475 . Tbe reasoning in tbat case, which need not be repeated now, applies with equal force to tbe defendant’s exception to tbe question and answer in tbe instant case. For this error tbe defendant is entitled to a New trial.