Benton v. North Carolina R. Co

• Decision Date: 24 May 1898
• Citation: 30 S.E. 333,122 N.C. 1007
• Court: North Carolina Supreme Court
• Parties: BENTON. v. NORTH CAROLINA R. CO.

30 S.E. 333

122 N.C. 1007

BENTON.

v.NORTH CAROLINA R. CO.

Supreme Court of North Carolina.

May 24, 1898.

Venue—Review—Measure of Damages—Lessor Railroad Company —Negligenoe— Excessive Verdict.

1. Under Code, §§ 196, 197, forbidding a judge to remove a cause "unless he shall be satisfied that the ends of justice demand it, " his refusal to remove is not reviewable.

2. In an action against a railroad company for a decedent's death, the measure of damages is the present value of decedent's net income, ascertained by deducting his expenditures from his gross income, then estimating the present value of the accumulation therefrom based upon his expectation of life, and, in estimating the reasonable expectation of pecuniary advantage from his life's continuance, his habits, business qualifications, and reasonable expectation of life should be considered.

3. A lessor railroad company is liable for an injury due to the negligence of its lessee in the operation of the road.

4. In an action against a railroad company for negligence, a motion to set aside the verdict because excessive, and not warranted by the evidence, rests in the discretion of the trial judge, and his discretion is not reviewable.

Appeal from superior court, Mecklenburg county; Green, Judge.

Action by Dora E. Benton, administratrix, etc., against the North Carolina Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Geo. F. Bason, for appellant.

Jones & Til-lett, Covington & Redwine, and Frank I. Osborne, for appellee.

CLARK, J. All the exceptions have been recently passed upon in the decisions of this court, and it is only necessary to refer to them.

1. The refusal of the judge to remove Is not reviewable. The present statute forbids the judge to remove a cause "unless he shall be satisfied that the ends of justice demand it, " and, when he is not so satisfied by the affidavits offered, it is immaterial that counter affidavits are not presented. State v. Smarr, 121 N. C. 669, 28 S. E. 549; Code, §§ 196, 197.

2. The court charged the jury as follows: "The measure of damages for loss of life of plaintiff's intestate is the present value of his net income, and this is to be ascertained by deducting the cost of living and expenditure from his net gross income, and then estimating the present value of the accumulation from such net income, based upon his expectation of life. In applying this rule to the facts in this case, and to enable the jury to properly estimate the reasonable expectation of pecuniary advantage from the continuance of the life of the deceased, they should consider his age, habits, industry, means, business qualifications, skill, and his reasonable expectation of life." These instructions follow the precedents in this court. Pickett v. Railroad Co., 117 N. C. 616, 23 S. E. 264 (at page 638, 117 N. C, and page 264, 23 S. E.); Burton v. Railroad Co., 82 N. C. 504; Kesler v. Smith, 66 N. C. 154.

3. The defendant moved for judgment against the plaintiff upon the pleadings and proof, "for that the pleadings showed that the injury resulting in the death of the plaintiff's intestate was due to the negligence of the lessee of the defendant in the operation of the road of ...