Cherry v. Atl. Coast Line R. Co
| Decision Date | 17 October 1923 |
| Docket Number | (No. 175.) |
| Citation | 186 N.C. 262,119 S.E. 361 |
| Court | North Carolina Supreme Court |
| Parties | CHERRY. v. ATLANTIC COAST LINE R. CO. |
Appeal from Superior Court, Pitt County; Grady, Judge.
Civil action by George E. Cherry, Jr., against the Atlantic Coast Line Railroad Company. From a judgment for defendant, plaintiff appeals. New trial.
The action is to recover damages for physical injuries caused by alleged negligence of defendant company. There were allegations, with evidence tending to show, that on the afternoon of April 6, 1909, plaintiff being at the time a minor of 12 years of age, he was sent by J. R. Moore, station agent of defendant company in Greenville, N. C, to mail a letter on a passenger and mail train of defendant, on the yard at the time, and just in the act of moving out of the yard; that the letter was addressed to officers of defendant company; that plaintiff went up to the moving train, and threw the letter into the mail car, running along the track a short distance to do so, and as he turned away he stumbled and fell over a pile of cinders dumped near the track by defendant company, or its employees, rolled under the train, and thereby received painful and serious injuries, including a broken leg, etc.; that the dumping of these cinders was on a public street or avenue of the town, and was in violation of a town ordinance in existence at the time and applicable to the conditions presented. The defendant denied that J. R. Moore was agent, or that the company was in any way responsible for his acts, denied the existence of the ordinance, or any negligence in reference to this question, alleged contributory negligence on part of plaintiff, and offered evidence in support of its positions. On issues submitted the jury rendered verdict:
Other issues not answered. Judgment on verdict for defendant, and plaintiff except-ed and appealed, assigning for error chiefly his honor's charge on the first issue:
"If you find that Moore was agent, the burden being on plaintiff to so satisfy you, and the injury occurred as a result of his direction to plaintiff, while he was acting in the scope of his authority as agent, you will answer the first issue 'Yes'; otherwise, you will answer it 'No.' "
P. G. James & Son, P. C. Harding, and D. M. Clark, all of Greenville, for appellant.
Skinner & Whedbee, of Greenville, for appellee.
The allegations of the complaint and the evidence introduced on part of plaintiff present, and are intended to present, the question of defendant's liability in two aspects: First, by reason of an alleged negligent order on part of defendant's agent; second, the violation of a town ordinance applicable to conditions presented and alleged to he a proximate cause of plaintiff's injury.
The two grounds of liability were distinctly recognized on a former appeal in this cause, wherein Associate Justice Adams, delivering the opinion, interpreting the complaint, said:
"The principal alleged acts of negligence are the breach of a town ordinance and the negligent employment by defendant of an immature and inexperienced youth to go upon a dangerous...
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Metcalf v. Foister
...North Carolina R. Co., 180 N.C. 490, 105 S.E. 184; Hauser v. Forsyth Furniture Co., 174 N.C. 463, 93 S.E. 961; Cherry v. Atlantic Coast Line R. Co., 186 N.C. 263, 119 S.E. 361; Matthews v. Myatt, 172 N.C. 230, 90 S.E. 150; State v. Merrick, 171 N.C. 788, 88 S.E. 501; McCracken v. Smathers, ......
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State v. Lambe
...for the first time in his case on appeal. G.S. §§ 1-206, 1-282; State v. Johnson, 227 N.C. 587, 42 S.E.2d 685; Cherry v. Atlantic Coast Line R. Co., 186 N.C. 263, 119 S.E. 361. The rule is otherwise, however, where the judge misstates the evidence, or the contentions of the parties arising ......
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Turnage v. Austin, (No. 179.)
...and if this leaves anything in doubt it should be made to clearly appear on the next trial. In an action of this kind it must ap-[119 S.E. 361]pear both that the prosecution was malicious, and that it was instituted without probable cause. Proof of only one of the essential features, in the......
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Smith v. Dillon Supply Co, 450.
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