Sigman v. Southern Ry. Co

• Decision Date: 26 April 1904
• Parties: SIGMAN . v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

47 S.E. 420

135 N.C. 181

SIGMAN .

v.SOUTHERN RY. CO.

Supreme Court of North Carolina.

April 26, 1904.

APPEAL—CASE—RECORD—INDEX—EXCEPTIONS— RAILROADS—PERSONAL INJURIES—FELLOW SERVANTS.

1. Appeals will be dismissed where no index is sent up in the record and printed, and no marginal references prepared, as required by rules 19 and 28 (27 S. E. vii, viii).

2. Under Code, § 550, and Supreme Court rule 27 (27 S. E. viii), it is imperative that the exceptions be briefly and clearly stated and numbered in the case on appeal.

3. Under Supreme Court rule 22 (27 S. E. viii), providing that irrelevant matter not needed to explain exceptions or errors assigned shall not be included in the record on appeal, only enough of the record should be included to show that the case is properly constituted; and this, with the summons, pleadings, verdict, and judgment, and the case on appeal setting out so much of the proceedings at the trial as will throw light upon the exceptions taken, is all that is necessary.

4. An exception that "the court erred in its charge to the jury" is too broad to be considered.

5. Under Priv. Laws 1897, c. 56, p. 83, declaring that, where any servant or employe of a railroad company is injured in the course of his service or employment in the said company, the fact that the injury is due to the negligence of a fellow servant shall not be a defense, a workman injured by the negligence of a fellow servant while engaged in repairing a railroad bridge is within the terms of the statute.

¶ 5. See Master and Servant, vol. 34, Cent Dig. § 365.

Appeal from Superior Court Iredell County; Allen, Judge.

Action by E. M. Sigman against the Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

L. C. Caldwell, for appellant.

Furches, Coble & Nicholson and R. B. McLaughlin, for appellee.

CLARK, C. J. No index was sent up in the record and printed, nor any marginal references, as required by rules 19 (2), 19 (3), and 28 (27 S. E. vii, viii). As provided by rule 20, it was therefore optional with the court to dismiss the action or to postpone its consideration, and in the meantime to refer the record to the clerk, "to put the record in the prescribed shape, " with an allowance to him of $5 therefor, and an order that execution issue forthwith for that amount, and for the cost of printing the additional matter. The court in this case chose the latter alternative. But these rules are required for the prompt consideration of the business coming up to this court and, if they are not carefully complied with, it will become necessary hereafter to dismiss in cases of their nonobservance. The fullest notice to this effect has heretofore been given. Alexander v. Alexander, 120 N. C. 474, 27 S. E. 121; Lucas v. Railroad, 121 N. C. 508, 28 S. E. 265; Pretzfelder v. Insurance Co., 123 N. C. 168, 31 S. E. 470, 44 L. R. A. 424; Baker v. Hobgood, 126 N. C. 152, 35 S. E. 253; and Brinkley v. Smith, 130 N. C. 226, 41 S. E. 106, in which last attention is called to the fact that these requirements must be observed even in pauper appeals, except only the requirement as to printing.

The record is also defective in not containing the marginal references required by rule 21, nor are the exceptions "briefly and clearly stated and numbered" in the case on appeal as required by the Code, § 550, and also by rule 27 (27 S. E. viii). This is imperative, and the attention of the profession is called to this requirement as to stating the exceptions in the case on appeal. The statute and rule would not have been made if experience had not demonstrated that this provision was necessary for the prompt and orderly dispatch of the business coming before us. On the other hand, some records infringe upon rule 22 by sending up "irrelevant matter not needed to explain the exceptions or errors assigned." Durham v. Railroad, 108 N. C. 399, 12 S. E. 1040, 13 S. E. 1; Mining Co. v. Smelting Co., 119 N. C. 415, 26 S. E. 27; Hancock v. Railroad, 124 N. C. 228, 32 S. E. 679. As, for instance, in some cases the transcript is incumbered with pages of entries of continuances from term to term and other proceedings at terms prior to the trial term, which are often sent up; when they throw no possible light upon the exceptions assigned. The appellate court does not need a complete history of the cause, but only enough of the record to showthat the case is properly constituted, and the summons, pleadings, verdict, and judgment, which are the "record proper, " and the case on appeal, which should set out so much of the proceedings at the trial as will throw light upon the exceptions taken. The above, when properly indexed, with marginal references, and printed, will present to the court all that is necessary for the proper consideration of an appeal. More than this is an unnecessary expense to the appellant, and a hindrance, rather than a help, to the court, while less than the above moderate requirements is just ground for dismissal or other appropriate...