
    DAVIS v. RAILROAD CO.
    (Filed March 1, 1904).
    1. GIFTS — Questions for Jury — Railroads.
    In this action against a railroad for killing a cow, whether the title to the cow was in the wife of plaintiff, under a gift from plaintiff to her, is a question for the jury.
    2. RAILROADS — Negligence—Presumptions—Evidence—■Instructions— The Code, sec. £826 — Nonsuit.
    Where a plaintiff makes a prima facie case by suing for the killing of a cow within six months, the defendant is not entitled to nonsuit the plaintiff on the ground that such prima facie case is rebutted by the evidence of the defendant.
    Montgomery, J., dissenting.
    ActioN by H. C. Davis against tbe Seaboard Air Line Railroad, Company, heard by Judge M. II. Justice and a jury, at September Term, 1903, of the Superior Court of Bertie County.
    This is an action for damages for killing a cow. As the action was brought within six months after the cow was killed, a prima facie case of negligence arose under section 2326 of The Code. Btotk sides introduced testimony, and the issues and answers thereto were as follows: 1. Was the plaintiff the owner of the cow in question ? “Tes.” 2. Did the defendant company negligently and wrongfully kill said ■cow ? “Yes.” 3. If so, what damage has the plaintiff sustained thereby ? $40.
    All the exceptions before us relate to the refusal to non-suit, the charge and the refusal to charge. Upon these questions the following proceedings appear from the record:
    After the testimony was closed the defendant renewed its motion to nonsuit upon the grounds, first, that the title to the cow was not in tbe plaintiff but in bis wife Cora; second, because tbe defendant bad rebutted tbe prima facie case of negligence made out by tbe statute. Motion refused, and defendant excepted. Exception No. 2.
    Tbe defendant in apt time requested tbe Judge to charge tbe jury that if they believed the evidence they should answer tbe first issue “No.”
    Eefused, and defendant excepted. Exception No. 3.
    That upon tbe whole evidence they should answer tbe second issue “No.”
    Eefused, and defendant excepted. Exception No. 4.
    That if they believed tbe evidence, tbe defendant bad rebutted the prima facie case of negligence made out by tbe statute, and they should answer tbe second issue “No.”
    Tbe Court did not give tbe charge in tbe language requested, but charged tbe jury as hereinafter stated, and tbe defendant excepted. Exception No. 5.
    Tbe Court charged tbe jury that they should pass upon tbe title to tbe cow, and they should determine from tbe testimony as to whether tbe cow was tbe property of tbe plaintiff or of bis wife.
    The Court charged tbe jury upon tbe second issue that the question of negligence would be left to them upon all of tbe testimony. That when tbe plaintiff showed to their satisfaction that tbe defendant bad killed tbe cow in question, if they found tbe plaintiff owned her, that was prima faci& evidence under the statute, and, nothing else appearing, tbe plaintiff was entitled to recover, and they should answer tbe second issue “Yes.” But if tbe defendant bad satisfied them that tbe killing was without negligence and unavoidable, as testified to by tbe defendant’s witness, then they should answer tbe second issue “No.”
    To this charge the defendant excepted, and assigned as ■error, first, the refusal to charge as requested, aucl second, for error in the charge as given.
    The following testimony given by the plaintiff is the only evidence relating to the ownership of the cow: “The railroad runs across my land. The cow was killed on December 18, 1902, the defendant’s train was two hours behind time. I went home from Lewiston, N. O., and saw my cow. She was dead, lying in a ditch. I saw tracks of the cow upon the •defendant’s road; looked like it had struck and knocked her off. The cow was more gentle than my driving horse. I bought the cow and gave her to my wife. I told my wife she could take her, and my wife acceded the gift.” The witness was asked: “Why are you bringing suit for your wife’s cow?” He replied: “The cow belonged to both of us; what is my wife’s is mine. I told my wife she could have the cow. There was no separation of the cow from the other cattle. I bought the cow and paid for her with my ■own money. My wife claimed her. The cow ran in the woods and on the farm. The farm belongs to my wife. T "bought the land upon which we live, using part of the money received from the sale of my wife’s land and about $200 of ■my own money, and took the title in her name. I placed metallic tags in the cow’s ears; the name of my wife was stamped on the tags. I had the tags on hand. I did not wish to change the marks of cattle I had bought, and put the tags on most of the cattle. I listed the cattle in my name, including this cow, for taxation.” The only direct testimony as to the manner in which the cow was killed was given 'by the engineman, a witness for the defendant.
    In a judgment for the plaintiff, the defendant appealed.
    
      Francis D. Winston, for the plaintiff.
    
      Day & Bell and Murray Allen, for the defendant.
   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.

MoNtgomeky, J.,

dissenting. This action was brought in the name of H. C. D'avis. On the trial he testified for himself that he had given the cow to his wife; that he had placed metallic tags in the cow’s ears with the name of his wife stamped on the tags; that the cow ran in the woods and on the farm, and that the farm belonged to his wife, and that there was no separation of the cow from the other cattle. That evidence, in my opinion, constituted a gift, and the Court should have dismissed the action upon the motion of the defendant.  