Hodgin v. Southern Ry. Co

• Decision Date: 13 November 1906
• Parties: HODGIN . v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

55 S.E. 413

143 N.C. 93

HODGIN .

v.SOUTHERN RY. CO.

Supreme Court of North Carolina.

Nov. 13, 1906.

1. Jury — Qualification of Jurors — Freeholders.

A husband, whose wife is seised in fee of real estate and is the mother of children by him, is a freeholder and eligible as a juror, notwithstanding Const, art. 10, § 6, providing that the property of any female acquired before or after marriage, shall remain her separate estate, and may be devised, and with the written assent of her husband, conveyed by her as if she were unmarried.

[Ed. Note.—For cases in point, see vol. 31, Cent. Dig. Jury, § 256.]

2. Appeal—Challenges to Jurors—Harmless Error.

The error of the court, in allowing a party's challenge of a juror, is not prejudicial to the adverse party, who did not exhaust his peremptory challenges.

TEd. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4125.]

3. Railroads—Injury to Persons on Track —Care Required at Crossinos.

A traveler, approaching a railway crossing at which the railroad keeps a flagman for the purpose of warning travelers, who discovers that the flagman is absent, is put on his guard, and must look and listen for the approach of trains, and exercise ordinary care for his own safety.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, § 1072.]

Appeal from Superior Court, Guilford County; Moore, Judge.

Action by James A. Hodgin, by his next friend, against the Southern Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Action to recover damages for injuries received by plaintiff from a collision with defendant's train at a crossing. The court submitted the issues of negligence, contributory negligence, and damage. The jury found the issue of contributory negligence against the plaintiff. From the judgment rendered plaintiff appealed.

John A. Barringer, for appellant.

King & Kimball, for appellee.

BROWN, J. One of the jurors was challenged by defendant upon the ground that hewas not a freeholder. The challenge was allowed, and plaintiff excepted. The juror owned no land, but his wife was seised of a fee, and had children by her husband. While the Constitution, art 10, § 6, has wrought very material and far-reaching changes as to the rights and dominion of the wife over her separate property, it seems, nevertheless, to have been held by this court that the husband still has what is termed an "interest" in her land which constitutes him technically a freeholder. In Thompson v. Wiggins, Mr. Justice Clark said of the husband, "by reason of such bare seisin he is still a freeholder, and as such has always been deemed eligible as a juror in those cases in which being a freeholder is a qualification." 109 N. C. 510, 14 S. E. 301. Although it is said in Walker v. Long, 109 N. C. 510, 14 S. E. 299, that the husband has no estate in his wife's land until after her death, being intestate, yet Mr. Justice Merrimon says: "But he has an interest as tenant by the curtesy initiate" and cites Thompson v. Wiggins. The same case is also cited with approval by Mr. Justice Avery in Jones v. Coffey, 109 N. C. 518, 14 S. E. 84. While much may be said to the contrary, we think it best to adhere to the former decisions of the court The exception, however, cannot be sustained, and will avail the plaintiff nothing as he did not exhaust his peremptory challenges. State v. Teachey, 138 N. C. 592, 50 S. E. 232; McDowell's Case, 123 N. C. 768, 31 S. E. 839; Hensley's Case, 94 N. C. 1021. We, however, notice the matter briefly in order to set it at rest

Inasmuch as the jury found the issue of negligence in favor of the plaintiff, it is unnecessary to consider the numerous exceptions in the record to the admission and rejection of evidence, and to the charge of the court, which bear only upon that issue.

The only exception we deem it necessary to notice relates to the charge of the court upon the issue of contributory negligence. The defendant offered evidence tending to prove that plaintiff had been to Greensboro on horseback, and was returning home about 11 o'clock at night; that, as he approached the railroad crossing, he did not pay any attention or exercise any care; that he had been drinking, and was under the influence of liquor, and either ran into a passing train, or else the train ran into him. There was evidence tending to prove that the company had kept a flagman stationed immediately at this crossing for the purpose of warning passersby, and that plaintiff...