Mims v. Seaboard Air Line Ry. Co.
| Decision Date | 03 May 1922 |
| Docket Number | 411. |
| Citation | 111 S.E. 778,183 N.C. 436 |
| Parties | MIMS v. SEABOARD AIR LINE RY. CO. ET AL. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Anson County; Ray, Judge.
Action by Lonnie C. Mims against the Seaboard Air Line Railway Company and others. From judgment for defendants, plaintiff appeals. No error.
Plaintiff express messenger on train No. 13, running from Wilmington to Charlotte, was injured in a wreck on the night of May 2 1919; said wreck occurring about two miles west of Lilesville and being caused by a derailment of the train.
A writ of certiorari in aid of case docketed at the proper term is a discretionary one, and may not be dispensed with by agreement of counsel.
James S. Manning, of Raleigh, McLendon & Covington, of Wadesboro and Douglass & Douglass, of Raleigh, for appellant.
B Vance Henry, of Wadesboro, and McIntyre, Lawrence & Proctor, of Lumberton, for appellees.
Seaboard passenger train No. 13, running from Wilmington to Charlotte, was wrecked on the night of May 2, 1919, at a point approximately two miles west of Lilesville in Anson county. Investigation made on the night of the wreck showed that the train had been derailed by means of a "drawbar" unlawfully placed on the railroad track by some person or persons, at that time, unknown to the defendants. Plaintiff was an express messenger in the employment of the defendant American Railway Express Company, and was in charge of the express car on the wrecked train. He brings suit against the American Railway Express Company, the Seaboard Air Line Railway Company, and the Director General of Railroads, to recover damages for injuries alleged to have been sustained in said wreck. The jury having answered the issues of negligence in favor of the defendants, there was a judgment dismissing the action and taxing the plaintiff with the costs.
We have carefully examined the record and have been unable to find any reason for disturbing the result below. Upon the merits, we think the judgment must be affirmed. No reversible error has been shown.
It also appears that this case was tried in April, 1921. The appeal therefore, should have been docketed and heard at the last term; or, at least, the record proper should have been seasonably docketed here and motion duly made for a certiorari. This latter writ is a discretionary one, and counsel may not dispense with it by agreement. Ex parte McCade (at the present term) 111 S.E. 3; State v. Johnson (N. C.) 110 S.E. 782; State v. Hooker ...
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