Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-02-03
COUnT DECISIONS.
DIcESTED BY w. 3. MARTIN.
Exclusively for virEin:an-Piiot,
Notes Of Cases Recently Decided,
Which are Of Interest 10
Our People.
BRENDLE v. SPENCER.

BRENDLE v. SPENCER.
Supreme Court OF North Carolina.
December 10, 1899.
A RAILROAD COMPANY is LIABLE
FOR INJURY 10 ONE OF SEW
ERAL HORSES WHICH WE'RE
BEING wATERED NEAR IT'S
TRACK, CAUSED BY THE BLOW
ING OF ITS LOCOMOTIVE WITS
TIE FOR THE PURPOSE OF
FRIGHTENING SAID HORSES.
CONTRADICTORY NEGLIGENCE IS
NO DEFENCE TO wILLFUL OR
WANToN INJURY.
The court says:
This was an action for damages
against the defendants. as receivers of
the Richmond and Danvllle Railroad
Company. caused by the alleged negll-
gent and willful conduct of the de-
PENDANTS servant in frightening horses
drives the plaintiff. The plaintiff
alleged q his complaint that while
drivln, pair of horses to a
hack, .s-half mile up the Tuck
aseigee river from Bryson City, he
went into the mouth of Deep creek to
horses were SO being watered. the de-
PENDANT ran one of Its trains over the
trestle crossing Deep creek. and will
fully. wantonly. and mallciously blew
it's engine whistle for the purpose of
frightening plaintiffs horses: that 1t did
brighten them, causing them to run out
of the mouth OF the creek into the river
and to injure plaintiff. He further
charged that the defendant negligcntly
blew the whistle at an unusual place,
all OF which WIS denied by the defend
ant. issues submitted to. ana responses
Of the jury: "CD Did defendants en-
gineer or fireman wantOnly. wrongfully
and Intentionally sound the whistle of
the engine for the purpose of frghten-
ing the horses the plaintiff had in
charge and was the plaintiff injured
thereby? Yes. (D What damage has
plaintiff sustained? $1,000 The fol-
lowing is I'll the charge OF the court
that appears In the record: The court
charged ms follows upon the first issue:
TO answer first issue Yes the bur-
den Is uron the plaintiff TO prove. by
the greater weight OF evidence, that
tho engineer blew the whistle mali
ciously or wantonly. MS ! will presently
explain. and thereby frightened and
caused the horses TO run into the river,
was blown for the purpose of frighten-
Ing the horses. it must have been either
malicious or wanton act. If with n
desire TO cnuse injury, 1t was malicious;
If I'm spirit OF sport Of Indifference to
the consequences. 1t was wanton. So
far as the clement of malice or wanton-
ness Is concerned. the question for you
to determine is whether the whistle was
blown for the purpose OF frightening
the horses. To sum up. IL you are sat
isfed. by the great weight of the evil
dence, that the engineer had knowledge
of the presence of plaintiff and the
horses: that he blew the whistle at an
unusual place or in an unusual man
ner; that his purpose was to brighten
the horses; and that he did frighten,
and cause them to run into the river,
and thereby inture the paintiff.-you
will answer the issue. Yes If you do
not find these to be the facts. you will
answer 1t. No In lieu of defend
ants twelfth request, the court
charged: eff the whistle was blown d.
rectly over the road leading UP the
creek under the trestle, that fact Is
immaterial, In so far as the being over
the road is concerned. If the trestle
was an unusual place at which to blow
The whistle. that fact is matter of ev-
L
explained but the fact that the road
leading up the creek ran under the
trestle Is imma terial." The defendant
asked the court to give the following
among other instructlons "(5) The de-
PENDANT had the right to run it's trains
over It's track. and to make the noises.
caused by the blowing of the whistle.
which were necessarily incident to the
operating OF Its trains; and. IL the jury
find from the evidence that no more
noise was made than was necessary,
the answer to the first issue should be
No" Exception /: This instruction
was modified as follows: Unless the
whistle was blown at an unusual place.
Tor the purpose Of frightening the
horses. and thereby caused the Injury
and to such modification the defend
ant excepted"
The finding of The jury on the first
issue eliminated all question of ncgli-
gence either of the defendant or the
plaintin. This appears to have been
admitted, as no part of the charge Is
sent up. except that relating to the first
issue. The charge appears to MS unex-
ceptionable. and the special instruc
tions asked by the defendant were pro-
perly refused. except in so far as given
IL is well settled that contributory neg
nsence. even IL admitted by the pIain-
I'M is no defense of willfuI or wanton
injury. Affirmed.
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