The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1895-11-29

[Reported ny Perrin Busbce, Esq. of the
taleigh Bari
William f. Pickett, Admir-, VS.. Viii
mington and Weldon Railroad Com
pany (appellant), from Duplin coun-
ty Opinion by Avery, j.
/. Where, by the exercise of ordinary
are an engineer can see that a !inman
being is lying apparently helpless,
rom any cause, upon the track in
'front.' of his engine, in time to stop the
rain by the use of the appliances at
lis command and without peril to the
safety of persons on the train, the
company is liable for any injury re-
,ulting from his failure to perform his
luty. And this is true, though the per-
on deliberately goes to sleep upon the
rack or goes upon it in an intoxicated
ondition; the breach of duty by the
ngineer being the proXimate cause
II the injury.
2. The instruction that the measure
If damages was the reasonable eXpec-
alton of pecuniary benefit from the
Continued life of the deceased to those
Who would have been dependent upon
aim, had he continued to live out his
natural life; that the expectation of
me seventeen years old would be
"A 2-10 years, and the damage would be
he net moneyed value of intestate's
ife TO those dependent upon him, had
le continued to live out his appointed
oime," was erroneous, in that it left
he question of the date which should
oe the basis of the final calculation,
uncertain; j e, that the damages is
he present value of the net income.
New trial as to damages.
w. j. Brown (appellant) vs.. Catawba
River Lumber Company, from New
Hanover county. Opinion hy .ivery,
Justice.
/. Where contract Was admitted to
rave been made, but the defendant de-
MED the breach thereof and alleged
that a new contract had been made,
he issue, Did the defendant wrong
ally violate such contract, the plain
Ill himself being in no dfault? is
rroneous. Two separate issues should
nave been framed-one involving an
inquiry whether there had been a
breach of the contract; the other the
question whether there had been "a
waiver.
q Where a contract is executory and
mas not been performed, in whole or in
part, new agreement needs no new
consideration other than the mutual
release by the parties of each other
from the old promise.
New trial.
State (appellant) vs.. James Shaw,
from Columbus county. Opinion by
Avery, j.
The failure to use the word "feloni-
)usly" in an Indictment charging an
Jffence punishable eithr with death or
With imprisonment in the State prison,
.enders such Indictment fatally defcc-
tive.
No error in sustaining motion in
trrest of judgment.
State VS.. Fred. Williams (appellaEt)
from Greene county. Opinion by
Clark, j.
/. A law re-enacted in the terms OF a
former law, is not a repeal, but is a re-
lffirbance of the former law, whose
provisions are thus continued without
any interruption.
2. Where, in an indictment, the Of
fence charged was laid on the 18th of
the month, whereas the evidence show
ed the offence to have been committed
on the sth; Held, to be immaterial
variance.
3. 1t is competent for the State to
prove any number Of offences of he
kind charged; the defendants remedy
is at the close of the evidence to ask
the court to require the Solicitor to
elect.
Affirmed
State VS.. w. b. Jones, ct al appeal by
Phillips, prosecutor) from Moore
county. Opinion by Furches, j.
Where the court, after finding that
the prosecution was frivolous and NAL
cions and not for the public good
without finding that defendants Wit
nesses We're proper for the defence,
ordered that the prosecutor pay the
costs of the prosecution; Held,
/. That it is immaterial variance
whether the notice to the prosecutor
to show cause why he should not he
taxed with costs is properly served, SO
long as the prosecutor appears in
court and defends under it.
2. In such case the court finds the
facts and such finding is not reviewa-
BILE in this court.
3. Where il was objected by the pro-
secutor that the court, after hearing
his evidence, would not hear the re-
ports in the neighborhood, and that
the court stopped his counsel before he
had said all he wished to say; Held,
that this is not a violation of Section
30 of the Code, which applies only to
the trial of criminal and civil actions,
and not to motions and questions aris-
ing during the progress of the trial
4. In the absence of any finding that
defendants witnesses were unnecessa-
ry to his defence, it is error to tax the
prosecutor with such costs; but the
prosecutor is not necessarily relieved
from this cost, if the court below shall
find such facts required by the statute
authorizing the order.
Modified and affirmed.