Virginian-pilot. (Norfolk, Va.) 1898-1911, 1900-08-11
COURT DECISIONS.
0lGESTED BY w. B. MARTIN
EXCLUSIVELY FOR
viRcINlAN-P PILOT.
Notes OF Cases Recently Decided
Which Are of interest to
Our People.
SMITH v. w. & w. r. CO.


Supreme Court of North Carolina.
May %, 1900.
WHEN IN y SUIT FOR DAMAGES
FOR AN INJURY THERE WAS NO
PROOF AS TO PLAINTIFFS LOSS
OF TIME. PAYMENT FOR MEDI-
CAL ATTENTION, OR MENTAL
ANGUISH. THE COURT SHOULD
NOT INSTRUCT THE JURY THAT
HE COULD RECOVER THERE
FOR.
The court says:
rms action was brought by the plain
tiit TO recover DAMAGES against the
uclchuant company Tor Il personal in
jury sustained by the plaintiff while
III the performance of work for the
ueicHuaht, which the plaintiff alleges
was dangerous, and the character of
which was unknown to him at the time
ne sustained the injury. on the issue
oI manages. his Honor instructed the
jury that, If the plaintiff was entitled
10 recover at all, he was entitled TO
recover SUCH damages as would com
pehsate him for the loss of his time,
lor the money paid out by him for
ihedlcal attention. for the physical pain
he mad suffered, for the mental anguish
ne had endured, and for the deteriora-
tion in his labor as Il carpenter. We
have carefully read, over and again.
every line of the evidence; and there is
not u word in reference to the time
lost by the plaintiff, nor of any money
pald out by him for any medical at
tendance, nor of any mental anguish
endured by him. There was, therefore,
error in that instruction, for which
there must be new trial. We would
restrict this new trial to the issue as
10 the damages the plaintiff is en-
titled to recover, but for the fact that
a. tn hat no,
the case on appeal is the real case as
ii was tried. When this case was first
called. a letter was read by the counsel
OF the defendant from his Honor. Judge
Adams. who tried the case below. in
which ii was stated that n part OF
the testimony of the plaintiff. tO-Wit:
since my injury. have heard Nclms
say 1t Ghe work. was dangerous. and
ne said he had told the officers of the
company that it was dangerous. Nelms
went TO my boarding house after I was
hurt, and he said during that visit that
he told the company it was dangerous.
ut the time they gave him the orders
To change the work, ought not to
have been embraced in the case on APP
peal. His Honor further wrote that his
notes did not show such testimony. and
that he had no recollection of the same.
Ills language was: Il have no rccol-
lection of this evidence and am CON
lidcnt the witness did not so testify,
case on appeal" \ ccrtiorari was
granted by this court and the cause is
now here upon the statement of the
case made up by Judge Adams in re-
SponSc to the ccrtiOrari. with the same
testimony Of Smith. the plaintiff. in
Guided. The certificate of Judge Adams
IS in the following words: After the
foregoing case was settled. as above
shown. and upon affidavit having been
fled with me. | was of the opinion that
l,sa1 tot. Ito, 4 -,
reference to the testimony of Frank
Smith. Since that time have careful
ly gone over the notes OF the testi-
mony. and after considering the nr-
mcrous aiiidavitS on both sides as to
what the witness SWore to. and after
hearing argument on both sides I now
certify the foregoing as a correct state
ment of the case on appeal If this
was the only matter which the de-
PENDANT had riHht to complain of. it
might not be sufficient to warrant the
court in sending the matter back for n
new trial. Iut as the case is to be
tried again because of the error. as we
have seen, in the instruction which was
given to the Jury on the question of
damages we are decidedly of the opin-
ion that the new trial should not be
restricted to the trial of the issue on
damages. OF course. we intend no re-
Election upon his honor, Judge Adams:
but the whole matter shows that his
own recollection OF the testimony WAS
not like that of the various persons
who made anidavits in reference to the
matter. and that he acted because of
the effect produced on his mind by the
number of the ailldavits. and the posi-
tiVencSs of their statements. and the
argument of counsel of the defendant
He did not state that his recollection
had been refreshed. or that his notes
contained the testimony. lie was in
doubt. New trial.