Willis v. Atlantic & D.R. Co.
| Decision Date | 05 April 1898 |
| Citation | 29 S.E. 941,122 N.C. 905 |
| Parties | WILLIS v. ATLANTIC & D. R. CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Caswell county; Adams, Judge.
Action by A. D. Willis against the Atlantic & Danville Railroad Company for personal injuries. Judgment for plaintiff. Defendant appeals. Affirmed.
The issues tendered by defendant, in lieu of, or, if that were declined, in addition to, plaintiff's first issue, were as follows: "(1) Was the accident by which plaintiff was injured the result of negligence of the section foreman in charge of the hand car at the time of the accident?"--which issue the court refusing to submit defendant, by counsel, excepted, and this is defendant's first bill of exceptions. "(2) Could the defendant through the engineer and other employés in charge of the excursion train, by due and proper care have discovered the hand car upon the track in time to stop train and prevent accident?"--which issue the court also refusing to submit, defendant, by counsel, excepted, and this is defendant's second bill of exceptions. Defendant, by counsel, also objected to the submission of the third issue as given to the jury, on the ground that it did not correctly state the principles governing the question of contributory negligence, which objection the court overruled, and submitted the issue to the jury; whereupon defendant, by counsel, excepted, and this is defendant's third bill of exceptions.
The following are defendant's exceptions:
To the action of the court in refusing to give defendant's first, twelfth, and thirteenth instructions, and in modifying defendant's seventh and eighth instructions, defendant severally excepted, and these are, respectively defendant's fifth, sixth, seventh, eighth, and ninth bills of exceptions. To that portion of the judge's charge which related to the headlight on defendant's engine the defendant excepted, on the ground that there was nothing in the evidence to warrant this part of the charge and this is defendant's tenth bill of exceptions. To that portion of the charge which related to whether there was a public crossing at or near the place of the accident the defendant excepted, on the ground that there was no evidence whatever to show that there was such public crossing, and this is defendant's eleventh bill of exceptions. To that portion of the charge which instructed the jury that it was the duty of defendant to avoid the accident if it could have done so with ordinary care, even with some danger, the defendant excepted, and this is defendant's twelfth bill of exceptions. To the entire charge, as given, the defendant excepted, on the ground that it did not clearly and correctly state to the jury the law governing the case, and this is defendant's thirteenth bill of exceptions. The jury, having found their verdict by answering the first and third issues in the affirmative and the second issue in the negative, assessed the plaintiff's damages at $500. Thereupon the defendant moved the court to set aside the verdict, and grant defendant a new trial, upon the following grounds: (1) Because the verdict is contrary to law and the evidence; (2) because of rejection of issues offered by defendant; (3) because of the giving of the third issue by the court; (4) because the court erred in overruling the motion to dismiss; (5) because of failure to give instructions prayed for; (6) because of objections to instructions given; (7) because the response of the jury to the second issue is contrary to the instruction of the court upon such issue,--which motion the court overruled, to which ruling and judgment of the court defendant excepted, and this is defendant's fourteenth bill of exceptions."
W. A. Fentress, for appellant.
J. W. Graham and J. A. Long, for appellee.
Every phase of defendant's contention could be presented upon the issues submitted, and the first three exceptions are without merit. Patterson v. Mills, 121 N.C. 258, 28 S.E. 368; Coley v. Statesville, 121 N.C. 301, 28 S.E. 482. Indeed, the issues were those properly arising on the pleadings. Denmark v. Railroad Co., 107 N.C 185, 12 S.E. 54. This case was here at a former term. 120 N.C. 508, 26 S.E. 784. After it went back, the plaintiff amended his complaint in several particulars, especially in charging negligence, specifically in that the defendant ran the excursion train "without any notice to the section master of the hand car, though there was ample opportunity, that it was run at great speed, with no headlight on the engine, after 7 o'clock p. m., around a sharp curve known to be dangerous, and where it was impossible to see far ahead, and, though a storm was raging, which prevented the running of the train being heard, no bell was rung, nor any whistle sounded, for the station at Blanch or the crossings near...
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