Everett v. Receivers Of Richmond & D. R. Co

• Decision Date: 12 October 1897
• Citation: 121 N.C. 519,27 S.E. 991
• Court: North Carolina Supreme Court
• Parties: EVERETT v. RECEIVERS OF RICHMOND & D. R. CO.

27 S.E. 991

121 N.C. 519

EVERETT

v.RECEIVERS OF RICHMOND & D. R. CO.

Supreme Court of North Carolina.

Oct. 12, 1897.

Instructions—Weight of Evidence—Railroads —Frightening Horses—Negligence— Wantonness—Definition.

1. It is not proper to charge that, if the jury believes the evidence, plaintiff cannot recover, where there is a conflict of evidence.

2. It is not error to charge that plaintiff cannot recover unless a locomotive engineer blew a whistle negligently, wantonly, or maliciously, for the purpose of frightening plaintiff's horses, as the word "negligently" is used in such a connection as to be clear that the court meant thereby such a degree of gross negligence as would be nearly akin to wantonness or malice.

3. An act is wantonly done when it is needless for any rightful purpose, and manifests a reckless indifference to the rights and interests of another.

Appeal from superior court, Swain county; Bryan, Judge.

Action by J. H. Everett against one Spencer and others, receivers of the Richmond & Danville Railroad Company. From a judgment for plaintiff, defendants appeal. Affirmed.

F. H. Busbee, A. B. Andrews, Jr., and G. F. Bason, for appellants.

T. H. Cobb, for appellee.

DOUGLAS, J. This is an action for damages for an alleged injury sustained by killing horses of plaintiff alleged to have been frightened by unusual and unnecessary noise made by the engineer's sounding the whistle. The horses became unmanageable, plunged into the river, and were drowned. The carriage was damaged, and the harness ruined. The usual issues were submitted, and found for the plaintiff. The only exceptions appear to the charge as given, and the failure to charge as requested by defendant, as follows:

"At the close of the evidence the defendant requested the court, in writing, to give the following special instructions: 'If the jury believes the evidence, the plaintiff is not entitled to recover, and the answer to the first issue should be, "No." ' This Instruction was refused, and the defendant excepted. '(2) Unless the jury believes that the person who blew the whistle blew it wantonly or maliciously, for the purpose of frightening the horses, the plaintiff is not entitled to recover, and the answer to the first issue should be, "No."' The court modified this instruction by inserting the word 'negligently' between the words 'it' and 'wantonly, ' and to this modification defendant excepted. '(3) If the jury believe that the person who blew the whistle saw the team, and saw that it was frightened, or knew that it was in danger of being frightened, still it was his right and his duty to blow the signal for the station; and unless he blew it in an unusual manner, or when it was not necessary, or for the purpose of frightening the horses, the answer to the first issue should be, "No." ' This instruction was given. The court charged the jury as follows: 'A railroad company is not liable when an injury results from horses being frightened by the noises or appearance of the train, when due and proper care in the management of the train is used. If the engineer wantonly and maliciously made unnecessary noise for the purpose of scaring the horses, and thereby the injury was brought about, in the loss of the horses, defendant would be liable. Negligence is the failure to observe, for the protection of the interests of...