Ashford v. Davis

• Decision Date: 07 March 1923
• Docket Number: 149.
• Citation: 116 S.E. 162,185 N.C. 89
• Parties: ASHFORD v. DAVIS, AGENT.
• Court: North Carolina Supreme Court

116 S.E. 162

185 N.C. 89

ASHFORD v. DAVIS, AGENT.

No. 149.

Supreme Court of North Carolina

March 7, 1923

Appeal from Superior Court, Craven County; Calvert, Judge.

Action by T. P. Ashford against Walker D. Hines, Director General of Railroads, in which James C. Davis, Agent, was substituted as defendant. From judgment for plaintiff, defendant appeals. Affirmed.

Where, in an action to recover for loss of goods through the negligence of a common carrier, the court charged that the burden was on plaintiff to prove that the carrier was negligent, and that such negligence was the proximate cause of the loss, and such instructions substantially covered all that defendant was entitled to, it was not error to refuse to give instructions tendered by defendant.

Moore & Dunn, of Newbern, for appellant.

R. A. Nunn, of Newbern, for appellee.

CLARK, C.J.

The original service was made on a local agent of the railroad company. W. D. Hines, Director General, appeared in the register's court, defended the action, and appealed from the judgment of the superior court. The general appearance waived all defects and irregularities, and would have been sufficient, even if there had been no service at all of the summons shown. C. S. § 490.

This action was begun before March 1, 1920, and, there being no stated time in which the agent of the government designated to be substituted for the former Director General was to be made a party, the motion to dismiss the action was properly denied. Bagging Co. v. R. R., 184 N.C. 73, 113 S.E. 595,

The motion to nonsuit was properly disallowed, as the court could not consider any of the defendant's testimony in its favor on such motion, but must take the evidence in the most favorable aspect for the plaintiff. Guano Co. v. Mercantile Co., 168 N.C. 223, 84 S.E. 272.

The charge of the court put the burden on the plaintiff, not only to prove that the defendant was negligent, but also that such negligence was the proximate cause of the injury. There was no error in refusing the prayers of the defendant as the instructions given substantially covered all that the defendant was entitled to. The issues submitted by the court were sufficient to present all the controverted matters in the case, and there was no error in rejecting those tendered. Bank v. Ins. Co., 150 N.C. 770, 64 S.E. 902.

No error.