*1 AUGUST TERM, C.] 101 Griffin v. Railroad GRIFFIN v. ATLANTIC COAST LINE RAILROAD CO.

(Filed 18, 1903). December Carriers—Pleadings—Trial—Tlie Code, sec. 395. ISSUES — Where, in an for injuries 'to a passenger, alleged incon- action sistent causes of action in different counts his it was error for the court to submit the case a single as to injured by negligence, alleged complaint. J., Clark, C. dissenting. Hiram Griffin Atlantic Coast against Line

AotioN heard Company, .Hailroad Frederick Moore and Judge at March Court of Term, 1903, Superior Halifax From a for County. judgment the defendant appealed. Darnel,

Walter E. Kitchin, E. L. Travis Claude the plaintiff. Iiill,

Thomas N. & Bell B. Elliott, Day O. for the defendant.

CoNNOR,J. This action was prosecuted by for the recovery damages been sustained act while from the defendant’s train. The alighting at the filed his plaintiff, appearance term, complaint, alleging that on therein named day a ticket de- purchased fendant’s Kelford to Palmyra, at stations being on the defendant’s boarded the road, and train, delivering conductor. ticket That when the train stopped Palmyra plaintiff proceeded while act without stepping off, notice warning moved engineer carelessly, negligently wantonly COURT. SUPREME IN THE Raileoad Co. GBimfisr *2 which the plaintiff oars, by the giving jerk suddenly, wrist otherwise his and breaking thrown the ground, was train in of the that him; injuring him a reasonable time failed give and negligently of injuries off that reason in and his which to train, get material he denied the sustained damage. and for a further defense of allegations the station at Palmyra, train was that when the approaching jumped it had plaintiff negligently stopped, and before was so in fell and doing the train, and and alighted it before still motion and while train was injured, in- risk of assumed being and that thereby stopped; his his cause of and jured, proximate also set contributory The defendant up negligence. injury. of the leave Term, 1902, plaintiff by At November train and when Court his that alleged as the and near Palmyra station, called said got down the got train drew near thereto and slowed car ready went from his door of to be up seat the train off when that when it stopped; get having nearly stopped, station and moving very slowly, who had also it had stopped, plaintiff believing platform, door and standing come to the direction obedience ivas reason thereof believing by the porter, vio- do stepped place so, forth. injuries set sustaining lently ground, material the amended The defendant denied the allegations complaint. following Honor submitted the his objection,

Without injured issues: Was the as Did the plaintiff complaint? defendant, to' his And an damages. injury? inquiry contribute Satterthwaite, v. Mr. in Tucker Douglas As said Justice N. C,] TERM,

Griffix Go. 120 N. C., not inadvertent 118, are line of “We long decisions rule the refusal of laying down the to submit an tendered either cannot be re- party viewed Court unless is time; taken exception apt nor do wish to be we understood as it. reversing* modifying * * * What we now section 395 the Code say is mandatory, the Court and binding equally upon counsel; that it own duty either Judge, motion ator to submit such suggestion counsel, to> the material settle controversies arising pleadings, such issues or the absence *3 admissions of record thereto to reasona- equivalent sufficient bly or clear justify, directly implication, judgment rendered for therein, this will remand ease a new trial.”

In Fisher at Pearce v. two term, C., 333, were defendants sued to have been injury alleged sus as as a of a landlord other tained, one part tenant hotel in which the plaintiff’s were stored. The goods was submitted: issue “Was the following injured either of or as com defendants, them, answered the “Yes.” Mr. plaint? jury issue Justice Walker “How can decide, this Court from the verdict says: as thus whether the rendered, intended to say that jury was both of the injured defendants only by ? one To them verdict either be way construe the merest The answer conjecture. jury if as one of be defendants just appropriate only if had as it action caused the would be by joint they * * * it. Issues should not submitted in such a that are will when answered it doubt way left ful to what the to the liabil found ity parties.”

It is case cited excepted true the defendant COUNT. THE SUPREME

GRIffkst iu the the allegations Iu it will seen that issue. tbis case based complaint and the are original if statements plain contradictory entirely The first that he was tiff’s of action. proceed says jerk, from the train a sudden alight engineer gave ing etc. which threw him violently the ground, Tire tbis to be entitled recover'. found true clearly he uniform effect. this Court authorities as tire train of action consists other cause alight; Palmyra he approached having slowed down was moving slowly, train had that it had believing he nearly stopped, stopped, off; on the directed porter standing platform fact iu did and because step thereto obedience he more than had supposed that the moving rapidly certainly and injured. he was thrown Now, ground nor is it so contended. of these be true, cannot allegations injured negli In one view of by the the case trans of tire the porter taking part gence engineer, in tire view was injured other action; free blame. entirely engineer being causes of action bemay joined have held that two' We *4 to the jury issues submitted appropriate tire and complaint, v. Lumber the Simpson controversy. each presenting phase o., cases therein cited. C., at and C this 95, term, there to must, the amendment exception the The overruled. fore, the deem discuss exceptions do not it

We each if the cause presented because charge, the of the charge exceptions action separately many have into the error crept arisen. may Such the case an to present effort is attributable issue. one in under aspects two contradictory duties of passen- and principles rights governing The TERM, C.] Griffis' on been so and recently trains have

.gers railway frequently n decided would seem unnecessary this Court it from them. found evidence repeat further facts in were and true, original no the plaintiff contributory negligence, found there re- in to recover. same entitled of action. But could not second spect surely they answer both issues affirmatively. “I in the car follows: sitting plaintiff testifies out station. came called Palmyra and porter through

and door as it to the station. I just walked got up ran I in until about hit station, stood door it tire it As it ran by the station and temporarily stopped. n stationthe platform who on standing off. came bade told me, get the other me oar side I was As To the best of belief train had stopped. my it bottom second step stepping act if entitles true, threw me out.” This testimony, jerked and with not correspond But it does to recover. which suggestion allegation original direction from the train at is made that lie alighted de- is that of that porter. allegation The gravamen reasonable him a carelessly give failed almost immedi- off the which get train, time could alight, after ately possibly before the stopping, train. Nor does started the negligently correspond testimony of whidr is that complaint, the gravamen porter carelessly him to off the and that by told negligently get train, reason thereof he believed the time and place that was off and that he could do so. He off and was safely stepped which we thrown to The inference violently the ground. from,

draw is that .allegation *5 do the train was too for him to alight moving rapidly

106 THE SOPEEME COURT'.

GeifRIN v. so and, but that be relied safely, porter’s judgment, be could from the believing safely alight, train. we well-settled recognize principle pleadings

While a. construed with view liberally justice substantial between well that the proof settled parties, equally must conform As substantially allegation. this Court in v. 209: “The Nicholson, by C., Parsley rules of common law been have pleadings abrogated not of Code Procedure. essential still The Civil principles The remain, and have been modified as technicalities only of form. both matters old object pleading, fact, new issues of law system, produce proper so that liti between justice parties be administered with gant regularity certainty.” Co., cause of action stated Lumber Simpson defendant in dis was the conduct of supra, negligent is allow its contractual It duty plaintiff. or acts negligence, able allege “It in different was committed negligence ways. with makes difference, respect plaintiff’s right a defective caused recover, engine tire burning on fire combustible' left material setting the defendant on So in this the same its right way.” case result follow respect would legal plaintiff’s right to recover the measure of whether the damages, or of porter. engineer view of alle said, have it could But, be, as we been both. The issues should have gations, been SO' attention of submitted have that the that, so case, directed to testimony aspects under instructions from they proper Court, believed answered the evidence. they accordingly first defend had answered the *6 TEEM, 10T G] GrietiN Railroad Co.

ant’s “Yes,” and second negligence respect issue that would have the1 “No,” ended contributory negligence n however, had answered controversy. If, to the first respect negative, they then to consider the issues the second proceeded directed to allegation.

To the end that submitted jury be a issues drawn in accordance with trial new opinion, this must had.

New Trial. of the' view Concurring J., dissenting.

Clark, G. follow with that “the same result would legal recover dam plaintiff’s right the measure negligence ages, or of me immate seems to that it is engineer porter,” it rial which it and no detriment was caused by was, which servant of the company specifically finding in either ease, defendant was to blame. The blame all called prove. to recover have found fact on which the plaintiff’s right he was injured by depends, to-wit, from its at Palmyra

defendant cars alighting ground. mentioned being in the different circumstances in-his complaint could state the offered proof might (Simpson meet phases Co., an issue Lumber but that does not require C., 95), in but the one issue “whether each, defendant jured

complaint” should since sufficient, especially did not ask another issue nor to those submitted. except

Had killed been party personal representative alleged, uncertainty evidence, two in besides the off on phases IOS THE SUPREME COURT. V.

LAMBERTSON VANN. of the ear right-hand side and on the left-hand side, the front car end and off the rear and several other end, variant must be an circumstances, there each? It seems there is but one issuaJble fact, injury by negli- *7 gence defendant at the time and dif- place-,and the ference in of tire statement attendant circumstances is merely evidential matter. I think there was no error committed below. Judge

LAMBERTSON VANN. (Filed 18, 1903). December 1. EXECUTORS AND ADMINISTRATORS —Wills.

Under provision of the -will set opinion, out executor carry authorized to farming operations on on land of testator during the settlement of the estate. References—Appeal. FINDINGS OF COURT— The findings referee, court, of fact adopted by the trial over objections, are appeal. conclusive on 3. EXECUTORS AND ADMINISTRATORS—'Wills. executor,

An authorized to operations conduct farming on testator’s land, properly paid purchase credited amounts for the of tenants’ interest crops bought purpose certain for the of protecting the interest of the devisees. 4. EXECUTORS AND Commissions—Improve- ADMINISTRATORS— ments.

An executor is entitled to expenditure commissions an for the permanent improvements erection of on land belonging tes- tator’s children proper for the cultivation thereof.