Burns v. Asheboro & M.R. Co.
| Citation | 34 S.E. 495,125 N.C. 304 |
| Parties | BURNS v. ASHEBORO & M. R. CO. |
| Decision Date | 28 November 1899 |
| Court | North Carolina Supreme Court |
Appeal from superior court, Randolph county; Robinson, Judge.
Action by Laura S. Burns, as administratrix, etc., against the Asheboro & Montgomery Railroad Company, to recover for death of her husband. There was a verdict for plaintiff, which she moved to set aside for inadequacy of the damages awarded, and from an order denying the motion she appeals. Reversed.
In an action against a railroad company to recover for death of plaintiff's husband, alleged to have been caused by defendant's negligence, where the evidence disclosed that deceased was employed as a fireman on defendant's road at the time of his death, testimony as to what he did when not on duty is incompetent, where it does not appear that he gained any remuneration therefrom.
G. S Bradshaw and B. F. Long, for appellant.
Black & Adams and Douglass & Simms, for appellee.
This is an action begun by the plaintiff to recover of the defendant company damages for the alleged negligent killing of her husband. The jury found that the deceased contributed to his own injury, but in response to the third issue, "Could the defendant, by the exercise of reasonable care, have avoided the injury, notwithstanding the contributory negligence of the intestate," answered, "Yes," and, for their answer to the fourth issue, said that the plaintiff was entitled to recover $1,071. The case is before us on exceptions by the plaintiff (1) because the court did not set aside the verdict on account of an alleged grossly inadequate amount assessed as plaintiff's damages; (2) because the court refused to give the plaintiff's 13 prayers for instruction on the second issue,--contributory negligence; (3) because the court refused to instruct the jury upon the measure of damages, according to No. 15 of plaintiff's prayers for instructions; and (4) because the court refused to receive certain evidence offered by the plaintiff upon the question of damages.
At this term of the court, in Benton v. Collins, 34 S.E 242, it was decided that the trial judge could set aside a verdict where it clearly appears that the amount assessed by the jury as damages is grossly inadequate, but it was also decided there that the decision of the trial judge is not reviewable by us; and so, when the motion made by the plaintiff to set aside the verdict for grossly inadequate damages was refused by his honor, the matter was concluded.
The exception to the refusal of the court to give the plaintiff's 13 prayers for instruction upon issue No. 2 involving the contributory negligence of the plaintiff, and also the exceptions to its refusal to instruct the jury as requested by plaintiff's counsel on the fourth issue, the measure of damages, we need not discuss any further than to say in connection with the former that it is urged here only so far as the evidence and prayers for instructions in reference thereto, which were refused by the court, affect the response of the jury to the fourth issue; and, for error in rejecting testimony of the plaintiff on that issue, we have decided that a new trial must be had, and, as to the latter exceptions on the measure of damages, that a safe precedent may be found in the case of Benton v. Railroad Co., 122 N.C. 1007, 30 S.E. 333, and the cases there cited. The fourth issue was, "What damage is plaintiff entitled to recover?" and upon that issue the plaintiff's counsel asked Rankin, a witness for the plaintiff, "What is the usual monthly earnings on the railroads for engineer and fireman?" Upon the question being objected to by the defendant, it was ruled out by the court, and the plaintiff excepted. It becomes unnecessary for us to pass upon the correctness of the court's ruling for the witness was permitted to state, in answer to the question by the plaintiff as to what was the "earning capacity" of the intestate at the time of...
To continue reading
Request your trial