Harrell v. Albemarle & R.R. Co.

• Citation: 14 S.E. 687,110 N.C. 215
• Parties: HARRELL v. ALBEMARLE & R. R. CO.
• Decision Date: 08 March 1892
• Court: North Carolina Supreme Court

14 S.E. 687

110 N.C. 215

HARRELL v. ALBEMARLE & R. R. CO.

Supreme Court of North Carolina

March 8, 1892

Appeal from superior court, Martin county; SPIER WHITAKER, Judge.

Action by W. H. Harrell against the Albemarle & Raleigh Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Defendant railroad allowed a "shanty car" to remain on a side track for several days, "ten feet in the street and two feet on a bridge at a crossing," so that it was liable to frighten horses, but leaving room on the bridge for vehicles to pass, without inconvenience. Plaintiff's horse took fright at the car, causing plaintiff serious damage. The court charged that if at the time of the accident the other side tracks of defendant were filled with cars so that it was necessary to its business to have the "shanty car" at the place it was, then defendant was not negligent, and its use of such side track was reasonable. Held, that the charge was as favorable to defendant as it had a right to ask.

Jas. E Moore, for appellant.

Don. Gillian, for appellee.

CLARK J.

On the issues submitted by consent, the jury found the following state of facts: That the defendant negligently caused and allowed its car to be placed and remain on the bridge at the point where the public street of the town crossed the railroad; that the car was on the bridge two feet; that it was calculated to frighten plaintiff's horse, and did frighten him so that the plaintiff received damage thereby to the amount of four hundred dollars; that the defendant in placing the car there, and permitting it to remain, was not making a reasonable use of its track, but was guilty of negligence; and that the plaintiff was not guilty of contributory negligence. The defendant asked the following instructions: "(1) That the placing of the car partially in the street, even if it extended to some extent over the bridge, was not negligence. (2) A car in a highway, with which a traveler does not come in contact or collision, and which does not obstruct the way of travel, is not to be deemed a defect, though a horse may take fright thereat and cause damage. (3) That the defendant company had the right to the use of the track on which its car was placed, and had the right to place its car there, and if its car left sufficient space for the passage of vehicles, and did not actually obstruct the cart-way, it is not liable. (4) That the ordinary rule that persons placing objects in or near a highway, and which are calculated to frighten horses of ordinary gentleness, are liable for the injuries resulting therefrom, does not apply to this case. (5) That upon the testimony in the case the defendant company is not liable. (6) That if they believe the cars were placed on the side track, as testified by witnesses Ellison and Hill,...