39 S.E. 27 | N.C. | 1901
Lead Opinion
This is a civil action brought by the administrator of Pink Perry, deceased, for damages for the alleged negligent killing of his intestate. The following are the issues as submitted and answered:
1. Was the injury resulting in the death of the plaintiff’s intestate caused by the negligence of the Southern Railway Company as alleged in the complaint? Ans. Yes.
2. Did intestate^ by his own negligence contribute to the injury resulting in his dearth ? Ans. Yes.
4. Is the defendant answerable for tire negligence of the Southern Railway Oompany in causing 'the death of the plaintiff’s intestate? Ans. Yes.
5. What damage has -the plaintiff sustained ? Ans. $7,000. The following are the defemdant’s assignments of error:
1. The defendant assigns for error such parts of the charge of the Court as are embraced by exceptions 1, 2, 3 and 4.
2. To the refusal of the Court to give the instruction numbered 13, which was prayed for by defendant.
3. To the refusal of the Court to sustain defendant’s ohjeetion to the remarks of counsel as set out in its sixth exception.
4. To the finding of the Court of the fourth issue in the affirmative.
o. To the refusal of the Court to grant a'neiw trial.
The first assignment can not be sustained. His Honor’s charge was full, occupying 13 pages of the printed record, and, we think, fairly presented the case. The defendant’^ exceptions to> the charge are somewhat “broadside” in their nature, one of -them including nearly two pages of 'the printed charge in a single exception. We have, however, examined the charge, and think it should be sustained upon its merits. As the questions involved have been so recently and so elabor-ateiy discussed by this Court, and as a new trial must be granted upon the third exception, we do not think it necessary to further comment upon the charge.
The second assignment can not be sustained. We suppose it refers to Hi© sixth exception, although the prayer itself is not numbered in the records. This exception could not have been given, 'as it is against the uniform current of our decisions.
The matter seems to have been presented as a pure question of law. It is true the counsel agreed in the Court below that all evidence bearing upon this question, whether record, documentary or oral, that had been offered in the James case (121 N. C., 523, 530), should “be considered as introduced” in the present case. No such evidence appears in this record, and we do not feel called upon to review the James case. That a railroad company leasing its road is liable for the negligence of its lessee in the operation of 'the road, is well settled in this State. Aycock v. Railroad, 89 N. C., 321, 330; Logan v. Railroad, 116 N. C., 940; Norton v. Railroad, 122 N. C., 910, 937. The third assignment of error has given us considerable difficulty, but we are forced to the conclusion that it must be sustained. The following statement is taken from the record: “During the course of the argument by one of the plaintiff’s counsel, he took occasion to compliment R. E. Simpson, conductor of a material train, and to state tih'alb he was a man of good character; had been known to him all of Ms life; 'thait he had no intention to attack Mm and that h:e believed that Mr. Simpson intended to tell the facts correctly as far as they came under his observation. He said further, however, that he regretted thait he could not say so much for
The exception does not appear tie have been taken in a very regular manner; but as. his Honor has allowed it, evidently for the purpose of giving the defendant the fullest opportunity of appeal, we will examine it in the spirit in which i't was allowed.
This Court has said in the case of McLamb v. Railroad, 122 N. C., 862, 872: “Much allowance must be made for the zeal of counsel in a hotly contested case, especially where the colloquy is mutual; and indeed much latitude is necessarily given in the argument of a case where there is conflicting evidence; but counsel should be careful not -to. abuse their high prerogative, and where the remarks are improper in themselves, or are not warranted by the evidence, and are calculated to mislead or prejudice the jury, it is the duty of the court to interfere.” The same remarks will apply to- the ease alt bar. If the witnesses had misbehaved in any way upon the stand, either in, words or manner, or showed any bias either of fear or favor, their 'testimony would be the proper subject of comment by counsel. In Cases where the direct- testimony of witnesses is diametrically opposite, some of the witnesses must be testifying improperly, either to that which they know is not true or to that of which they have no knowledge. In such circumstances it is natural -that the counsel should attribute such false testimony to ‘the opposing
For the failure of his Honor to interfere at the request of opposing counsel, a new trial must be ordered.
New trial.
Concurrence Opinion
concurs in the conclusion reached in the opinion of the Court that a new trial must be had and for the reason assigned. Pie thinks, however, that his Honor should have given No. 13 of the defendant’s special prayers for instruction, which Was in the following language: “If the jury find from tire evidence that intestate went to defendant’s depot for the purpose of heating a ride on one of defendant’s trains, then intestate was >a trespasser from the moment he entered defendant’s premises and the defendant owed him no duty except not to injure him wantonly or wilfully or with such carelessness as amounts to a reckless disregard of conse-
Lead Opinion
This is a civil action brought by the administrator of Pink Perry, deceased, for damages for the alleged negligent killing of his intestate. The following are the issues as submitted and answered:
1. Was the injury resulting in the death of the plaintiff's intestate caused by the negligence of the Southern Railway Company as alleged in the complaint? Ans. Yes.
2. Did intestate by his own negligence contribute to (472) the injury resulting in his death? Ans. Yes.
3. Notwithstanding such negligence on the part of the said *352 intestate, could the Southern Railway Company by the exercise of due care and prudence have prevented the killing? Ans. Yes.
4. Is the defendant answerable for the negligence of the Southern Railway Company in causing the death of the plaintiff's intestate? Ans. Yes.
5. What damage has the plaintiff sustained? Ans. $7,000.
The following are the defendant's assignments of error:
1. The defendant assigns for error such parts of the charge of the Court as are embraced by exceptions 1, 2, 3 and 4.
2. To the refusal of the Court to give the instruction numbered 13, which was prayed for by defendant.
3. To the refusal of the Court to sustain defendant's objection to the remarks of counsel as set out in its sixth exception.
4. To the finding of the Court of the fourth issue in the affirmative.
5. To the refusal of the Court to grant a new trial.
The first assignment can not be sustained. His Honor's charge was full, occupying 13 pages of the printed record, and, we think, fairly presented the case. The defendant's exceptions to the charge are somewhat "broadside" in their nature, one of them including nearly two pages of the printed charge in a single exception. We have, however, examined the charge, and think it should be sustained upon its merits. As the questions involved have been so recently and so elaborately discussed by this Court, and as a new trial must be granted upon the third exception, we do not think it necessary to further comment upon the charge.
The second assignment can not be sustained. We suppose it refers to the sixth exception, although the prayer itself is not numbered in the records. This exception could not have been given, as it is against the uniform current of our decisions.
The fourth assignment is without merit, as the question involved has been directly decided in James v. R. R., 121 (473) N.C. 523. Why it should have been put in the form of an issue in the case at bar does not clearly appear to us. As a common carrier, chartered by the State, assumes certain obligations to the public of which it can not absolve itself by its own act alone, it is primarily liable for all injuries caused by the negligent management of its road. In any event, the burden rests upon it of showing such facts as will release it from its prima facie, and we might almost say, its inherent liability. No such evidence appearing, there was no error in the direction of his Honor.
The matter seems to have been presented as a pure question *353
of law. It is true counsel agreed in the Court below that all evidence bearing upon this question, whether record, documentary or oral, that had been offered in James v. R. R.,
The exception does not appear to have been taken in a very regular manner; but as his Honor has allowed it, evidently for the purpose of giving the defendant the fullest opportunity of appeal, we will examine it in the spirit in which it was allowed.
This Court has said in McLamb v. R. R.,
For the failure of his Honor to interfere at the request of opposing counsel, a new trial must be ordered.
New trial.