Wallace v. Western N.C.R. Co.

• Citation: 10 S.E. 552,104 N.C. 442
• Parties: WALLACE v. WESTERN N.C. R. Co.
• Decision Date: 21 December 1889
• Court: United States State Supreme Court of North Carolina

10 S.E. 552

104 N.C. 442

WALLACE v. WESTERN N.C. R. Co.

Supreme Court of North Carolina

December 21, 1889

Appeal from superior court, McDowell county; PHILIPS, Judge.

This was an action to recover damages from the defendant railroad company for personal injuries suffered by plaintiff on account of the alleged negligence of defendant. The defendant assigns the following as errors of law committed by the court: (1) The court's refusal to allow the defendant to ask the plaintiff what his net earnings were in the exercise of his trade. It was competent upon the question of damages to be assessed in favor of the plaintiff. (2) The court's refusal to instruct the jury, as required in the fourth instruction prayed by the defendant, that it was "usual and proper for a passenger to remain in his seat, and especially so on freight trains, while being transported." (3) The court's refusal to instruct the jury, as prayed in the fifth instruction of defendant "that if the plaintiff, by remaining in his seat, could have avoided the injury, and his getting up was the cause of the same, then he contributed to his injury by his negligence." (4) The court's refusal to instruct the jury, as requested in the sixth prayer of defendant "There being no dispute about the fact that the plaintiff did get up from his seat, and was injured by reason thereof, the court should find as a proposition of law that he contributed to his injury by his negligence, and direct the jury to find the second issue in favor of the defendant." (5) The court's refusal to instruct the jury, as prayed, "that there is no evidence that the locomotive was overloaded." (6) The court's refusal to instruct the jury, as prayed in the eighth prayer of defendant, "that, in assessing the damages the plaintiff is entitled to recover, the jury should award the plaintiff compensation only for the injuries he suffered." (7) The refusal of the court to instruct the jury, as prayed in the ninth prayer of the defendant, "that the burden of proof, in the light of the evidence in this case, is upon the plaintiff to show negligence on the part of defendant because there is excited in the mind of the court by his (plaintiff's) evidence a suspicion of contributory negligence on his part; and, further, in the light of the evidence in the case, the burden of proving contributory negligence is not upon the defendant, but upon the plaintiff to disprove the same. This is so, because the plaintiff's own evidence does raise a suspicion of negligence on his part." (8) The laying down to the jury in the court's charge abstract propositions, without applying the principles to the facts in this case. (9) In not saying to the jury there was no evidence of the length of the train it only being shown it was a long train. (10) In not instructing the jury they could not consider, on the question of damages to which he was entitled, what plaintiff has paid for medical aid and nursing. The court should have gone further than to say there was no evidence of the amount paid. There was a verdict for the plaintiff, and defendant appeals.

The court instructed the jury as follows: "In this class of cases the plaintiff is entitled to recover as damages one compensation for all injuries, past and prospective, in consequence of defendant's wrongful or negligent acts. These are understood to embrace indemnity for actual nursing and medical expenses and loss of time, or from inability to perform ordinary labor, or capacity to earn money. Plaintiff is to have a reasonable satisfaction (if he is entitled to recover) for loss of both bodily and mental powers, or for actual suffering both of the body and mind, which are the immediate and necessary consequences of the injury." Held a proper charge.

D. Schenck and Busbee & Busbee, for appellant.

Batchelor & Devereux, for appellee.

CLARK J.

When this case was here the first time, (98 N.C. 494, 4 S.E. Rep 503,) the evidence being substantially the same as now sent up, the court held that the judge below erred in instructing the jury that there was no evidence of contributory negligence, and that such issue should have been submitted to the jury. When the case was again before this court, (101 N.C. 454,8 S E. Rep. 166,) while it went off upon another point, the same exceptions to the charge were made substantially as now, and this court said: "In respect to other assignments of error, we are of opinion that there was evidence to go to the jury tending to prove that the locomotive was overloaded, and of careless management of it; that the court could not properly instruct the jury, in the light of all the evidence, that the injury sustained by the plaintiff was the result of a mere accident; nor should it have been said to them that, in view of all the evidence, the plaintiff could not recover; nor that, accepting the plaintiff's own evidence as true, he was chargeable with contributory negligence." As...