The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1900-03-08
Digest Of Opinions
By the Supreme Court.
Edgerton vs.. Goldsboro Water Company

Fdoerton vs.. Goldsboro Water Company.
Modified and affirmed.
The furnishing of water to a city is not
necessary expense within the meaning OF Arti-
Gle VII, Section Z of the Constitution and
tax levied by the city to meet such expense
without the sanction Of the qualified voters of
the municipality Is ultra wires and VOID. Mayo
W. Commissioners. l22 n. c., 8; Charlotte VS..
shepard, 100 N. c. al. Nor can such tax be
levied under a provision in the city's charter
that the aldermen shall provide water Tor the
use OF the city.
The Illegal disbursement of tax mlawfully
collected may be enoined Commissioners vs..
Snuggs, 12l \. c. 39f
Wvnne vs.. Beardsley
Reserved.
Action 10 restrain defendant, who is superin-
tendent of public roads OF Warren county, from
proceeding further under chapter ISL, Acts 1899,
to lay ont a public road over the plaintiffs
land. Section OF the Act gives the superin-
tendent control Of the public roads of Warren
county for the purpose of building, constructing
and keeping the same in repair, subject 10 the
approval of the Board OF County Commissioners.
5, ction II gives the superintendent dlsTeuona-
~ power. subject to the approval OF the Board
of County Commissioners, TO locate and relocate
public road when demanded by the conven-
ience OF public travel and provides for che as
seSsment of damages to the owner upon notice
and the right of appeal The defendant super
intendent, at the request OF large number OF
neighhorS and with approval of the Commission
ers was proceeding to locate a road oyer the
land of the plaintiff when he was enlomed. 1t
does not appear that anything had been done
material TO the construction OF the ROAD ana
tie plaintiffs land had not been materially IN
jured.
Held that the injunction was enormously
granted
irregular. The proper course of proceeding I'M
der 5S1. Acts 1890 is for the superintendent, TO
locate the road with the aid of a surveyor and
without unreasonable damage to the land and
report his action and the survey to the County
Commissioners IN meeting, and the land owner
should also be notified of the time and place
he IaflTG ga
the superintendent report and make a record
thereof, the road thus located becomes a pub
lie road and the superintendent should then be
directed TO construct it.
When the road has been completed and the
fact reported to the commissioners the land
owner, if he claims damages, should petition
the board within thirty days thereafter, for Il
jury to assess the damage and when the jury
have reported the board should provide fer pay
ment to the land owner in any manner allowed
Cox vs.. Norfolk and Carolina Railroad Co.
Affirmed.
action to recover damages This case was
first reported in l23 n. c.. GOA and the eXcep-
tons disposed OF there decisive of most
of those in the present case.
Evidence that the intestate was found in the
night time dead upon the defendants track,
about two hours after its train had passed, one
foot and hand being cut off; that it a
bright moonlight night: that the place OF the
accident was upon level ground, extending $50
feet or more to the station, and that a man
lying upon the track could be easily seen at
that distance upon the night of the accident
that neither the bell or whistle of the passing
engine were sounded, warranted a submission of
the issues, "U) Did the defendant negligently
kill the plaintiffs ntestateY' "(2) Was said in
testate guilty OF contributory negligence go
Notwithstanding such negligence of the intes-
tate, could the defendant by exercising due care,
etc, have prevented the klling?
| When in such case the plaintiff admits CON
| tributory negligence it is necessary to submit
! the issue whether Notwithstanding such contrib
| utory negligence the defendant might have avoid
| ed the accident by exercising due care and pru-
| dence.
| The testimony of witness in reference to his
experiments as to the distance at which he could
| see man lying upon the track at the place
! of the accident, was admissible. State vs. Graz
! ham, "a y. c. GAG.
The court is not required to charge in the
| exact words of a prayer for instructions even
when the prayer is correct. Norton vs. Railroad,
| 10 y. c. 9l0 933
| Manufacturing Cs. Gray.
Petition to rehear dismissed. Motion TO amend
/ record denied.
BY virtue of Section 965 of The Code the Su,
preme Court may amend the transcript of an
appeal so as to make the record speak the truth,
or when such amendment will not be prejudicial
| to the rights of any of the parties; but the
| court will not, upon rehearing allow an amend
ment of the pleadngs of a case previously tried
| before it year ago, to enable the petitioner
| to assign error in the opinion OF the court, and
| which would be to contradict the evidence adj
| duced the trial below
The decision in this reported in l24 n. G.
/
Brinkley VS.. w. ~ W. Railroad Co
| Affirmed.
| Upon motion for non-st1t under the Act OF
| 1897 the evidence for the plaintiff must be ac-
! cepted as true and construed in the light most
| favorable to the plaintiff, and ii there is more
| than a scintilla of evidence tending 20 prove
| plaintiffs contention the case must go to the
| Jury. Cox vs. Railroad, 1913 n. c. 604 Dunn VS..
| Railroad l24 n. G. 252 Powell VS.. Railroad, l25
| n. c. 80; Spruill vs.. Insurance Co. 100 y. {.
| Ill: Cowles VS.. Mcneil. 125 n. G. 3S5.
| An engineer is presumed to know the peculiar
| surroundings of the railroad track and when he
/ sees an animal upon the track ahead OF his
| train and has to believe that the animal
can not escape without injury, it is his duty to
stop the train. Snowden Railroad, % n. c.
| 81.
| gently iniurng plaintiffs horse, the evidence
| was that the horse was 100 yards ahead OF the
defendants train and running along the
| ends of the cross-tieS: that at that place and
until the track reached trestle about 200 yards
| distant, there a ditch feet deep ON either
| side of the road bed and a bank foot above
! the ditch with no waylfor the horse to leave the
| track; that the engineer sounded the whistle
| when he saw the horse and continued to blow 1t
] until the horse ran upon the trestle and was
| injured, and stopped the train about the time
| the horse had crossed the trestle. The court
| charged the jury in substance that II the en-
| gineer had reason to believe that the horse
| would run upon the trestle unless the train was
stopped, it was the duty of the engineer TO
stop the train as soon as he reasonably could, and
if he failed to do so he negligent; that II
the injury would possibly have been avoided
had the engineer stopped the train as soon as
lie could, his failure to do so was the cause OF
the injury; Held error, and that the defen-
dant's motion to non-suit under Act OF 1897