*1 N. O.]
Peury Co. N. C. Railroad W. CO. RAILROAD CAROLINA NORTH PERRY v. WESTERN (Filed 5, 1901.) June Lessor—Lessee—Negligence. 1 RAILROADS — negligence lessee of the is liable for the The lessor of railroad operation road. in the of the Negligence—Trespasser. 2. RAILROADS — charge owes a railroad refuse to
It is not error to wilfully. wantonly injure trespasser not to Improper Remarles OF COUNSEL —New 3. ARGUMENTS Trial — Counsel —Trial. ground improper constitute in this case of counsel
for new trial. Pink Perry, administrator J. by Perry, A. ActioN by Raiilroiаdl, hearld North. the Western Cair’odiinla Term, at January (Special) and a W. B. Council From, a Bueke County. Court of Superior defendant appealed. for the plaintiff, judgment Ervin, plaintiff. & for and Avery & Avery, Avery Bason, defendant. F. for the Geo. admin- action brought J. This civil
Douglas, deceased, alleged Pink damages istrator of Perry, are the his The following intestate. killing negligent and answered: as submitted issues death of the plaintiff’s
1. Was injury resulting Southern caused by negligence intestаte Yes. in the Ans. complaint? Company alleged to the own contribute 2. Did intestate^ his negligence ? Yes. his dearth Ans. injury resulting IN THE SUPREME COURT.
Pekky Rajxeoad v. W. N. C. *2 3. sucb on the Notwithstanding the said negligence part of ¡tine could Southern intestate, the Company ex- by ercise due care and have prudence ? the prevented billing Ans. Yes.
4. Is the defendant for answerable tire of the negligence Southern Railway Oompany death of causing 'the plaintiff’s intestate? Ans. Yes.
5. What has -the damagе plaintiff sustained ? Ans. $7,000. The are the following defemdant’s assignments error: 1. for The error such assigns of the parts charge of the Court are embraced by exceptions 1, 3 and 4. 2,
2. To the refusal of the Court to give instruction num- bered was prayed by defendant.
3. To the refusal of the Court to sustain defendant’s ohjee- tion to counsel as out set in its sixth exception.
4. To the finding Court of the fourth issue in the affirmative.
o. To the refusal of the a'neiw grant trial. The first can assignment not be sustained. His Honor’s was charge full, 13 occupying pages printed record, and, we think, fairly the case. presented The defendant’^ to>the are exceptions charge somewhat “broadside” their оne of -them nature, two including nearly of 'the pages printed in a charge We single exception. have, however, examined and think it charge, should be sustained its merits. As the involved questions have been so and so elabor- recently discussed this ateiy by Court, as a new trial must be granted third we do exception, it not think neces- sary further comment upon charge.
The second can assignment not be sustained. We suppose it refers to Hi©sixth excеption, although itself is prayer numbered in the not records. This could exception not 'as it is given, uniform current our de- cisions.
N. 1901. 0.] Perry N.W. 0. Railroad Co. fourth without as the in- assignment merit, question
volved has been decided James v. directly it C., shоuld have been the form Why put of an in the ease at does net issue bar ns. As a clearly appear common carrier, chartered assumes certain obli- by State, to the of which it can not gations public itself its аbsolve orwnact it is liable for all primarily caused alone, injuries road. In negligent its the bur- management event, any den rests upon it such facts as will release showing it its 'and facie, we almost its prima liabil- might say, inherent No such ity. there no- appearing, error *3 direction of his Honor.
The matter seems to have been aas presented pure ques tion of law. It is true the counsel below agreed all evidence that this whether bearing upon record, question, had that been offered in case documentary oral, the James (121 C., should 523, “be considered as introduced” 530), in the case. No such evidence present this appears record, and we do not feel called review the James case. upon to That a railroad its road is liable for the company leasing negli of its lessee in the gence road, 'the is well settled operation Railroad, in this State. v. 89 N. C., 330; Aycock Logan Railroad, v. 116 N. C., 940; Norton 122 N. C., 910, 937. The third has us con error assignment given siderable but we are forced the conclusion difficulty, that it must be sustained. is taken from following statement one of record: the course the argument by “During he took occasion to R. E. counsel, the plaintiff’s compliment and to conductor a material state tih'alb train, Simpson, a man of known him all of character; was had been good Mm and h:e life; Ms 'thait he had intention to attack that believed Mr. intended to tell the facts Simpson correctly far He said further, as came under his observation. they much for that he thait he could not so however, regretted say á7é THE COURT. IN SUPREME
PERRY v. W. N. C. Railroad and it w'as transparent Black and Headricks, the witnesses were net examination they one who heard the every hut were influenced fact witnesses, fair and hy impartial He further stated thait were of defendant. they employees h)ad muid take employmеnt that he once mam 'that thought free 'to tell the whole railroad feel company yet .this within that his observation stand, truth the witness but upon him men thait few the court-house taught last years were, 'the railroad company Whoheld their ait will place as a which most of them rule, subjected great temptations an in- you withstand. He then said: ‘I will could not give I a ease stance without names. Was mentioning any trying sarnie an was defendant when engineer placed 'the I witness stand whom had fcnolwnfor 25 years, upon was whose character I 'would have to> stanid, sworn man had for carelessness this This been good. discharged hy -and two or three months before company re-emрloyed and on Ms cross- trial. introduced company, He examination chief so stated the facts bearing case on as to trial, question negligence, acquit cross-examination, of all blamie. On the coun- sel whо with me handed Mm statement appeared printed made to have theretofore hy giving purporlbing *4 had to' full account of the facts which he nar- just professed was. and which rate, by him, utterly printed statement, signed that therе- his and delivered, contradictory jnst of in his that eyes down and with tears he hr'oke upon begged to' Mm. Counsel further the should not be shown papier for hie felt he witness, -that he didn’t abuse that stated of chil- to' bread in the months his himself perjured pult the upon then said he wished jury passing dren. He Hendricks recollect of Black and to the employees testimony the of and meat managers bread depended upon that their of this the course Company. During the Southern EEBRUABY 0.] Perky v. C. W. N. Railroad and ob- defendant, Counsel, the argument their arose through to overruled such made. The Court jected argument being the J. Er- the counsel for S. objection, one defendant, G-.F. the counsel vin, associate, B'ason, leading stated his ¡to the in a tone audible case, Court, don’t ex- ‘Why you V and in ‘I Mr. Bason do not cept said, have reply except now.’ Defendant’® counsel the statement this case insisted his wias upon aрpeal intended to con- language the idea did that he 1» the vey language, whereupon such, exception.” Count allows does not tie taken in a exception appear very have it, but as. has manner; his allowed regular evidently Honor the defendant purpose giving fullest oppor- we will examine in which i't tunity appeal, spirit it was allowed.
This Court has said in the case McLamb v. 122 N. 872: “Much allowance be made C., 862, must the zeal of in а counsel contested where case, especially hotly is and indeed necessa- mutual; much latitude is colloquy of a case where there is rily given argument conflicting but counsel should be careful their evidence; abuse not -to. are where high prerogative, improper or are not warranted and are evidence, themselves, to mislead or calculated it is the prejudice will The same remarks to-the interfere.” apply court bar. If the had misbehaved in witnesses any way ease alt in, words or stand, manner, either showed any their be the favor, bias either of fear or would 'testimony where the of comment counsel. In Cases proрer subject some of witnesses is diametrically opposite, direct- testimony either to that of the witnesses be testifying improperly, must they to that of which know is not true or they natural -that the In circumstances such it knowledge. opposing attribute false ‘the testimony counsel should such *5 THE IN SUPREME COURT. Perry N.W. C. Railroad Co. be so must witnesses. Whether exceeds bis doing privilege be try- left discretion necessarily largely be- and case, ing who, hearing testimony seeing far havior of the witnesses can better than one else judge any would of his comments. If were we all, propriety hesitate to but counsel went far testi- interfere; beyond any defendant, over .the mony and, case, objection related facts within 'his of common personal knowledge, not and were not These facts information, which in evidence. were in their from essentially nature, and, damaging corning so source, were the most high capable producing danger- ous That the counsel intended no prejudice. impropriety, we does not alter the case. The cheerfully fact admit, remains that such one of his Statements, coining high character and exalted in his became position profession, only tlie more when addressed to whose confi- dangerous jurors dence Such were not in justly possessed. statement evi- he dence, were admissible properly not argument counsel.
For the failure of his Honor to interfere at request counsel, new opposing trial must be ordered.
New trial. J., concurs the conclusion reached in the MoNtgombey, of the Court that a opinion trial new must be and for the reason Pie assigned. Honor should thinks, however, that his No. 13 of given the defendant’s for in- special prayers struction, which Was in the “If following language: find from jury tire that intestate went to defendant’s depot purрose on one of heating defendant’s ride trains, intestate >a trespasser from the moment entered defendant’s premises owed him no not to duty injure or wantonly with wilfully such carelessness as amounts to a of conse- reckless disregard *6 477 1901. O.]
CUTLER,v. E. & E. Lumber And if that view is- it. follows, therefore, correct, quemces.” which laid down the law of bis Honor’s charge part the defendant’s towiard the intestate its governing on him as which would for the thalb liability injury inflicted be to onе who to be at depot applicable right —ex- the defendant and of its 1, 2, exceptions— cepted by The witness Brittain testified that the intes- was erroneous. in- him a tate told short time before he wlaskilled that bis on the from Mor- tended train way Hickory beating ganton. J., concurs above.
Cook, RAILROAD AND
CUTLER ROANOKE LUMBER CO.
(Filed 5, 1901.) June — — — 1. CANCELLATION OP INSTRUMENTS Fraud Deed Suffi- ciency Treaty Evidence —Fraud in Factum— —Fraud Contract. making in this case as to fraud in Evidence deed was sufficient jury. to submit Evidence—Deeds n —Fraud. Cоmpetency—Parol EVIDENCE — vary competent and contradict the terms of a deed is Evidence making whether was fraud there auestion deed. M. the Roanoke J. land J. Cutler A.
ActioN heard T. A. Mc- and Lumber Company, Railroad Fall Term, Superior Neill and at of WASHINGTON From County. judgment plain- tiffs, the appealed.