Avera v. Sexton

• Citation: 35 N.C. 247,13 Ired. 247
• Court: United States State Supreme Court of North Carolina
• Decision Date: 30 June 1852
• Parties: WILLIAM AVERA JR., v. WILLIAM SEXTON.

13 Ired. 247

35 N.C. 247

WILLIAM AVERA JR.,

v.WILLIAM SEXTON.

Supreme Court of North Carolina.

June Term, 1852.

WHAT amounts to negligence is a question of law. And the plaintiff is entitled to special instructions upon certain facts presented by the testimony, or “upon the whole case,” if he choose to subject himself to the disadvantage of having all the conflicting taken against him.

IT is error to refuse such special instructions, when called for, and to submit the matter to the jury, with general instructions merely.

Appeal from the Superior Court of Law of Cumberland County, at the Special Term, February 1852, his Honor Judge SETTLE presiding.

This is an action on the case to recover damages from the defendant, for negligence in managing and steering his raft in the Cape Fear River, by which an unfinished raft of the plaintiff was broken from its fastenings, and the timber lost.

The plaintiff called as a witness, James Colvill, who swore, that he was employed by the plaintiff to watch a raft of timber, which he was making in the river, and guard it from the dangers of a freshet. The witness stated, that the clamp or unfinished raft was tied to a tree on the shore by an inch rope. In consequence of a high freshet--a rise of twenty feet of water, which came very suddenly in the river, he went to the landing on the morning of the day the clamp was broken, and securely fastened the same by an inch rope to a tree higher up the bank. At a late hour of the day he went again to the river, and found the plaintiff's timber gone, and saw upon the tree, where the rope had been tied, the mark made by the rope, as if it had been violently strained. The witness farther stated, that the clamp was in a cove, made by a bend in the river; was at a public rafting and landing place, a place where raftsmen coming over the falls, or rapids, were accustomed to stop for the purpose of discharging the extra hands, necessary to bring the raft over the falls. He further said, that there were twenty-four sticks of timber in the plaintiff's clamp.

The plaintiff next examined Kedar Kennedy, who swore, that he came over the falls on the day the plaintiff's timber was lost, and tried to “ take up” his raft at the “ upper landing,” next to the falls--failing in this, he followed the current until he came within eighty or a hundred yards of the “cove,” when seeing a clamp or raft of timber at the place described by the first witness, he ordered his hands to “pull out,” and not to strike it. He then ran with the current about two miles, until he came into “eddy water,” and took up his raft. He stated, that he could see the plaintiff's raft at the distance of eighty yards, and could easily avail striking against it, after seeing it at that distance. He further stated, that the current of the river set in a direction off from the plaintiff's timber, and was sufficiently strong to carry off a raft, if no effort had been made to draw it into the shore.

Thomas Bolin was next introduced, who swore, that he was on the defendant's raft the day that the plaintiff's clamp was broken; said, that the clamp might have been seen at the distance of seventy-five yards, but was not seen at that distance; that he was standing upon the raft near the front, not employed at the time; that most of the hands were working to get the raft in near the shore for the purpose of “taking up”; that so soon as the alarm was given about the clamp ahead, the hands commenced working the fore-oar for the purpose of throwing the head of the raft out into the main stream, so as not to “ butt ” the plaintiff's timber; that the front of the raft being thrown suddenly out caused the stern to wheel in, which “dragged” or “rubbed” the plaintiffs timber, and caused the clamp to be broken, and the pieces scattered in the current. Witness further said, he thought all was not done that might have been done to prevent the injury to the plaintiff.

The plaintiff gave evidence of the value of his timber and closed his case??

The defendant, to support his plea of “not guilty,” examined, first, James McAllister, who swore, that he had been many years acquainted with rafting and ““navigating” the falls; that on this occasion he went on the defendant's raft at his request, and assisted the hands in going over the falls; that there were ten or twelve hands on the raft, more than the number usually employed in the highest freshet; that they were safely over the falls, and drew in towards the shore, trying to take up; and were trying for a half a mile--throwing out their ropes around trees and catching the limbs; that when the alarm was given about the timber ahead at the landing, the main force was applied to the fore oar to throw the head of the raft out into the stream and to avoid a collision with the plaintiffs clamp; that a part of the hands were also working at the “hind oar” to prevent its dragging or rubbing; but as soon as the front of the raft passed...