16 S.E. 896 (N.C. 1893), Alexander v. Richmond & D.R. Co.

Citation:16 S.E. 896, 112 N.C. 720
Opinion Judge:MACRAE, J.
Party Name:ALEXANDER v. RICHMOND & D. R. CO.
Attorney:G. F. Bason and D. Schenck, for appellant. Jones & Tillett, for appellee.
Case Date:February 09, 1893
Court:Supreme Court of North Carolina
 
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Page 896

16 S.E. 896 (N.C. 1893)

112 N.C. 720

ALEXANDER

v.

RICHMOND & D. R. CO.

Supreme Court of North Carolina

February 9, 1893

Appeal from superior court, Mecklenburg county; J. F. GRAVES, Judge.

Action by Annie L. Alexander against the Richmond & Danville Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

In an action against a railroad company for injuries from a collision at a city street crossing, defendant asked that the jury be charged that "if plaintiff, by the exercise of her senses, could have heard the approaching engine, and failed to do so, and her injury was caused thereby, it was negligence on her part, and the answer to the second prayer [evidently meaning issue, which was plaintiff's contributory negligence] should be, 'Yes.' " Held, that it was not necessary to give the conclusion that the answer should be "Yes," though it was proper; since the failure to give it could not mislead the jury, or prejudice defendant.

Plaintiff alleged that in attempting to cross defendant's railroad, at the crossing at Fifth street, in Charlotte, with her horse and buggy, she was carelessly and negligently run into by defendant's shifting engine, her buggy broken, and her horse frightened, and thereby rendered less easily manageable, and her shoulder bruised, causing a permanent injury to her right arm. Plaintiff, in her own behalf, testified that she was a regularly licensed physician, engaged in the practice of her profession; that, before crossing the track, she "held up very slow," to hear if there was an approaching train; that she heard no bell, and did not see the approaching engine until it was a few feet away; that there were box cars standing on one of the tracks, on both sides of the street; that a factory was on one side of Fifth street at this crossing, and a foundry and machine shop on the other; that both were making a noise like the running of a train, but that she heard the bell at the same place the evening before, above this noise. She also testified that she had not been confined to the house by reason of the accident, and had not carried her arm in a sling, but had continued to practice her profession, and drove with her injured hand.

Defendant asked special instructions. The sixth instruction asked for was: "If the cars on the track cut off the plaintiff's vision, and the noise of the factory and machine shop drowned other noises, it was the duty of the plaintiff to use her sense of hearing all the more cautiously, and, if she failed to use greater than ordinary caution, the answer to the second issue should be 'Yes."' The court gave the instruction down to and including the word "caution," and added, "it would be negligence." The third instruction asked for was: "The defendant had a right to leave its cars on its side track, and, if this was the cause of the injury, the answer to the first...

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