Perry v. Western North Carolina R. Co.

• Decision Date: 05 June 1901
• Citation: 39 S.E. 27,128 N.C. 471
• Parties: PERRY v. WESTERN NORTH CAROLINA R. CO.
• Court: North Carolina Supreme Court

39 S.E. 27

128 N.C. 471

PERRY v. WESTERN NORTH CAROLINA R. CO.

Supreme Court of North Carolina

June 5, 1901

Appeal from superior court of Burke county; Councill, Judge.

Action by J. A. Perry, administrator of the estate of Pink Perry deceased, against the Western North Carolina Railroad Company, for the negligent killing of intestate. Deceased went to defendant's passenger depot for the purpose of hearing a political speech, and, while attempting to cross the track from the passenger to the freight depot at a place used by the employés and others in going from one station to the other, his foot was caught in the planking between the tracks, and a gravel train backing down the track ran over and fatally injured him. There was some evidence in the case that deceased started for the freight depot for the purpose of stealing a ride on one of defendant's freight trains. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Where counsel, in his closing argument, in commenting on the credibility of witnesses, did not confine himself to their testimony, acts, or appearance on the stand, but related prejudicial facts within his personal knowledge, not of common information, and which were not in evidence, such remarks constitute a proper ground for a new trial.

Geo. F Bason, for appellant.

Avery & Avery and Avery & Ervin, for appellee.

DOUGLAS J.

This is a civil action brought by the administrator of Pink Perry deceased, for damages for the alleged negligent killing of his intestate. The following are the issues, as submitted and answered: "(1) Was the injury resulting in the death of the plaintiff's intestate caused by the negligence of the Southern Railway Company as alleged in the complaint? Ans. Yes. (2) Did intestate by his own negligence contribute to the injury resulting in his death? Ans. Yes. (3) Notwithstanding such negligence on the part of the said intestate, could the Southern Railway Company, by the exercise of due care and prudence, have prevented the killing? Ans. Yes. (4) Is the defendant answerable for the negligence of the Southern Railway Company in causing the death of the plaintiff's intestate? Answer. Yes. (5) What damage has the plaintiff sustained? Ans. $7,000." The following are the defendant's assignments of error: "(1) The defendant assigns for error such parts of the charge of the court as are embraced by exceptions 1, 2, 3, and 4. (2) To the refusal of the court to give the instruction numbered 13 which was prayed for by defendant. (3) To the refusal of the court to sustain defendant's objection to the remarks of counsel as set out in its sixth exception. (4) To the finding of the court of the fourth issue in the affirmative. (5) To the refusal of the court to grant a new trial."

The first assignment cannot be sustained. His honor's charge was full, occupying 13 pages of the printed record, and, we think, fairly presented the case. The defendant's exceptions to the charge are somewhat "broadside" in their nature, one of them including nearly two pages of the printed charge in a single exception. We have, however, examined the charge, and think it should be sustained upon its merits. As the questions involved have been so recently and so elaborately discussed by this court, and as a new trial must be granted upon the third exception, we do not think it necessary to further comment upon the charge.

The second assignment cannot be sustained. We suppose it refers to the sixth exception, although the prayer itself is not numbered in the records. This exception could not have been given, as it is against the uniform current of our decisions.

The fourth assignment is without merit, as the question involved has been directly decided in James v. Railroad Co., 121 N.C. 523, 28 S.E. 537, 46 L. R. A. 306. Why it should have been put in the form of an issue in the case at bar does not clearly appear to us. As a common carrier chartered by the state assumes certain obligations to the public, of which it cannot absolve itself by its own act alone, it is primarily liable for all injuries caused by the negligent management of its road. In any event, the burden rests upon it of showing such facts as will release it from its prima facie, and we might almost say its inherent, liability. No such evidence appearing, there was no error in the direction of his honor. The matter seems to have been presented as a pure question of law. It is true, the counsel agreed in the court below that all evidence bearing upon this question, whether record, documentary, or oral, that had been offered in the James Case, 121 N.C. 523, 530, 28 S.E. 537, 46 L. R. A. 306, should "be considered as introduced" in the present case. No such evidence appears in this record, and we do not feel called upon to review the James Case. That a railroad company leasing its road is liable for the negligence of its lessee in the operation of the road is well settled in this state. Aycock v. Railroad Co., 89 N.C. 321, 330; Logan v. Railroad Co., 116 N.C. 940; Norton v. Railroad Co., 122 N.C. 910, 937, 29 S.E. 886.

The third assignment of error has given us considerable difficulty, but we are forced to the conclusion that it must be sustained. The following statement is taken from the record: "During the course of the argument by one of the plaintiff's counsel, he took occasion to compliment R. E Simpson, conductor of a material train, and to state that he was a man of good character; had been known to him all of his life; that he had no intention to attack him; and that he believed that Mr. Simpson intended...