Wiggins v. Hiawassee Valley Ry. Co

• Decision Date: 31 May 1916
• Docket Number: (No. 586.)
• Citation: 89 S.E. 18
• Court: North Carolina Supreme Court
• Parties: WIGGINS et al. v. HIAWASSEE VALLEY RY. CO.

89 S.E. 18

(171 N.C. 773)

WIGGINS et al.

v.HIAWASSEE VALLEY RY. CO.

(No. 586.)

Supreme Court of North Carolina.

May 31, 1916.

Appeal from Superior Court, Cherokee County; Ferguson, Judge.

Actions by J. U. Wiggins and others against the Hiawassee Valley Railway Company. From judgment for plaintiffs, defendant appeals. No error.

Three actions were begun in the superior court of Cherokee county against the de-fendant; one by J. U. Wiggins and wife, Lillie Wiggins; one by Adeline Wiggins, and one by J. U. Wiggins, to recover damages alleged to have been sustained by the plaintiffs about January 13, 1915, from blasting operations being conducted by the defendant. The first two actions were to recover for personal injuries sustained by Lillie Wiggins and Adeline Wiggins, respectively, and the third was by the husband of Lillie Wiggins, and father of Adeline Wiggins, to recover damages for loss of service, etc., resulting from the alleged injuries sustained by Lillie Wiggins and Adeline Wiggins. The consolidated actions were tried before Ferguson, Judge, at the November term, 1915, of Cherokee superior court, upon the following issues:

(1) Was the defendant negligent as alleged in the complaint? Yes.

(2) Was the plaintiff Lillie Wiggins injured by the negligence of the defendant? Yes.

(3) What damage, if any, is the plaintiff Lillie Wiggins entitled to recover? $500.

(4) Was the plaintiff Adeline Wiggins injured by the negligence of the defendant? Yes.

(5) What damage, if any, is the plaintiff Adeline Wiggins entitled to recover? $400.

(6) What damage, if any. is the plaintiff J. U. Wiggins entitled to recover? $100.

From the judgment rendered, the defendant appealed.

J. D. Mallonee, of Murphy, and Martin, Rollins & Wright, of Asheville, for appellant.

Sherrill & Harwood, of Bryson City, and Dillard & Hill, of Murphy, for appellees.

PER CURIAM. There is evidence tending to prove that the defendant was building a railroad near the dwelling house of J. U. Wiggins and was blasting out rock. On the day of the injury it placed a charge of dynamite, containing 25 pounds or more, on the top of a large rock. Prior to that time the defendant had placed a heavy shot in behind this rock, which had slid the rock down. This rock was a very large one, about 14 feet long, 6 or 8 feet high, and was broad. The rock had a sort of gap or cavity on top facing the Wiggins house, with a high place or rim on the side opposite the house. The shot complained of was placed in this depression with some mud on top of it. Plaintiff's house was about 100 yards from the blasting operations. The force of...