Frisby v. Town of Marshall

• Decision Date: 21 December 1896
• Parties: FRISBY v. TOWN OF MARSHALL.
• Court: North Carolina Supreme Court

26 S.E. 251

119 N.C. 570

FRISBY v. TOWN OF MARSHALL.

Supreme Court of North Carolina

December 21, 1896

Appeal from superior court, Madison county; Timberlake, Judge.

Action by Rachael Frisby against the town of Marshall for personal injuries. From a judgment of nonsuit, plaintiff appeals. Reversed.

Plaintiff filed the following complaint: "(1) That the defendant is a corporation organized under the laws of the state of North Carolina, and as such is acting and doing business through its duly-elected officers and agents, and was at the times and dates hereinafter mentioned. (2) That, as such corporation, it became and was a part of the duties of the defendant corporation to keep up and repair streets and sidewalks within the corporate limits of the said town of Marshall, and was at the dates hereinafter mentioned. (3) That the plaintiff is the owner in fee of some very valuable lands within the corporate limits of the said town of Marshall, and was at the dates hereinafter mentioned. (4) That on or about the 1st day of May, 1890, and before and after said date, but more particularly since said date defendant has taken large amounts of the valuable land of the plaintiff above referred to, and appropriated it to its own use, claiming that the same was necessary to the repair of one of its streets running through the land of plaintiff that at various times since the said 1st day of May, 1890 the defendant, through its officer and agents, have torn down the fence of plaintiff, and dug out and taken to its own use the said valuable land of plaintiff, to the amount (at the date of the commencement of this action) of at least seventy feet by one hundred and twenty, and have cut and destroyed from plaintiff, and used, a large number of valuable shade trees growing and being upon said land, by which plaintiff has been greatly damaged, to wit, in the sum of five hundred dollars. (5) That the defendant, through its officers and agents, as before stated, on or about the date above named turned the Frisby branch in the road, which she had to go over to get to her cow and other stock, and let the same run in the said road for a long period of time, negligently and willfully refusing to turn the same out and repair the said road, although often requested so to do by the plaintiff until the plaintiff has been greatly and specially damaged by the said negligent acts of the defendant, in that she contracted rheumatism from having to get wet in going over the said road, from which she has not yet recovered, and from which she has been greatly damaged, to wit, in the sum of five hundred dollars damage; all of which the defendant refuses to pay, although the plaintiff has often demanded the same. (6) The plaintiff, by reason of the wrongful and negligent acts of the defendant, has been damaged in the sum of one thousand dollars. Wherefore, plaintiff prays judgment for the sum of one thousand dollars damage, and for cost of action, and for general relief."

Answer "The defendant, answering the complaint of plaintiff, says: (1) That allegations 1 and 2 of said complaint are true; (2) that allegation 3 of said complaint is not true; (3) that each and every allegation contained in paragraph 4 of said complaint is not true; (4) that each and every allegation contained in paragraph 5 of said complaint is not true; (5) that the allegation contained in the sixth paragraph of said complaint is not true. The defendant, by way of a further defense, says: (1) That the plaintiff's right of action is barred by the statute of limitations, it having been more than three years since the causes of action have accrued, and the same is pleaded in bar of the plaintiff's right of recovery. (2) That the plaintiff's right of action is barred by the...