Hodgin v. RailroadHodgin v. Railroad
Onе of the jurors was challenged by defendant upon the ground that he was not a freehоlder. The challenge was allowed, and plaintiff excepted. The juror owned nо land, but his wife was seized of a fee and had children by her husband. "While the Constitution, Art. X, sec. 6, has wrought very material and far-reaching changes as to the rights and dominion of the wife ovеr her separate property, it seems, nevertheless, to have been held by this Cоurt that the husband still has what is termed an “interest” in her land which constitutes him technically a freеholder.
In Thompson v. Wiggins Mr. Justice Clark said of the husband : “By reason of such bare seizin he is still a freeholder, *95 and as sucb bas always been deemed eligible as a juror in those cases in which being a freеholder is a qualification.” 109 N. 0., 510.
Although it is said in
Walker v. Long,
While much may be said to the contrаry, we think it best to adhere to the former decisions of the Court.
The exception, however, cannot be sustained, and will avail the plaintiff nothing, as he did not exhaust his perеmptory challenges.
State v.
Teachey,
Inasmuch as the jury found the issue of negligence in favor of the plaintiff, it is unnecessary tо consider the numerous exceptions in the record to the admission and rejection of evidence, and to the charge of the Court, which bear only upon that issuе.
The only exception we deem it necessary to notice relates to the charge of the Court upon the issue of contributory negligence.
The defendant оffered evidence tending to prove that plaintiff had been to Greensboro on horseback and was returning home about 11 o’clock at night-; that as he approached the railroad crossing he did not pay any attention or exercise аny care; that he had been drinking and was under the influence of liquor, and either ran into а passing train or else the train.ran into him. There was evidence tending to prove thаt the company had kept a flagman stationed immediately
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at tbis crossing for tbe purpose of warning passers-by, and tbat plaintiff knew of tbis custom. It is stated in appellаnt’s brief, and is in evidence, tbat wben plaintiff got near tbe railroad crossing be looked for tbe watchman, but saw none. It is contended by tbe plaintiff tbat as be looked for tbe usual watchman and saw none, be bad a 'right to cross tbe track and was absolved frоm tbe usual duty of looking and listening, and tbat bis Honor erred in refusing to so charge. For tbis positiоn plaintiff relies upon
Russell v. Railroad,
We do not gainsay tbe proposition tbat where a railroad company keeps gates at a crossing for tbe protection of tbe public, and tbe gates are opened, it is an invitation to enter and cross tbe track. Tbe cоmpany then assumes tbe care and protection of tbe passers. But if the passer sees wben be gets near tbe track tbat the usual gates are gone, be is at оnce put on bis guard, and be should look and listen for passing trains before crossing. Tbe same rule applies wben a watchman is stationed at tbe crossing to give warning. Tbe trаveler who sees tbe watchman in bis place has tbe right to rely on him for proteсtion, but wben be discovers tbat tbe watchman is absent from bis post of duty, be is put on his guard at once, and must exercise ordinary care to protect himself from injury. He should himself thеn look and listen for passing trains. It is true tbe watchman is guilty of negligence wben be deserts bis рost, but wben tbis negligence was discovered by plaintiff it made it all tbe more incumbent upon him to look and listen for bis own protection, for be bad ample time to do so. Thеre would be more in plaintiff’s contention bad he proceeded to cross tbе track before he discovered tbat tbe watchman was absent, relying upon tbe рrotection which be supposed tbe watchman was giving him.
We have examined bis Honor’s charge, and especially that portion relating to contributory negligencе. In explaining to
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the jury the relative rights and duties of railroad companies and travelers at surface-crossings, his Honor quoted extensively from
Mr. Justice Bradley’s
lucid opinion in
Improvement Company v. Stead,
The judgment of the Superior Court is
Affirmed.