The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1901-06-30
Supreme Court Decisions.
tReported by Jos. L. seavell.)


LAYDEN VS.. KNIGHTS OF PYTHIAs.
Affirmed.
Where corporation organized by an
Act of Congress to operate in the District
of Columbia, but having domesticated in
this State under the "Craig Law" is
sued in the courts of this State, Pc
tition for removal to the United States
Circuit Court was properly refused.
In chartering corporation to do bust
ness in the District of Columbia Congress
does not act in it's federal capacity but as
a local legislature, and it's Acts unless
otherwise clearly expressed, are confined
in their binding operation to the juris
diction for which they were originally
intended.
Corporations chartered primarily to do
business in the District of Columbia can
operate in the States only by comfy, uh-
less their charters expressly authorize
them to conduct their business in the
States.
STEWART vs.. SOUTHERN RAILROAD
CO. Affirmed
Where a fiagman on railroad train,
while waiting in the day time for train
which is in sight, about 300 yards dis
tant, to pass--the train having stopped
to fix lOg''-sits down on the end of
cross tie and goes to sleep and is run over
and killed, the engineer having given the
alarm signal and endeavored to stop the
train, the company is not liable.
In such case the engineer, in the abb
sence of knowledge that the person upon
the track is deaf or devoid Of his senses,
is justified in believing, till the last mo-
ment that the person will take reasonable
precaution for his own safety. Norwood
VS.. r. r. Co, III N. c. 24O.
BOUTTEN VS.. WELLINGTON & POW
ELLSVILLE RAILROAD co. Error.
A verdict cannot be directed in favor
of one upon whom rests the burden OF
proof
Where, in an action to recover dam
ages for personal injuries, the plaintiff
introduced evidence to show that al
though there was contributory negligence
on his part, the proximate cause of the
injury was the subsequent negligence OF
defendant, who had the "last clear
chance" to avoid the accident, it was err
ror in the trial judge to non-suit the
plaintiff.
Where, in such case, defendant sets
up an alleged release from the plain
tiff, which recites no consideration, and
the evidence in support of plaintiffs al
legation of fraud and mistake in signing
the release and want of consideration,
was uncontradicted, the burden is upon
defendant to rebut the presumption OF
fraud arising from want of consideration.
Wright VS.. Railroad 1875 N. C. / and Del
linger VS.. Gillespie, 11S N, c., 1877 dis
tinguished.
The presumption Of consideration from
a seal is liable to rebuttal even where
a consideration is recited in the deed.
Barbees.vs. Barbee, los N. c. 5S1; S. C.
100 N. G. 299; Smith VS.. Arthur, IL, N. c.,
400; Shaw VS.. Williams, 100 N. c. PIP.
COLEY VS.. N. c. RAILROAD CO. AZ
firmed.
The "Fellow Servant Act Chapter Sc
Private Laws, 1897 is construed to mean
that an employee OF a railroad company
by continuing to use defective machinery
and appliances of the company in the
performance of his duties, the company
knowing of the defects, is not held to
have assumed the risk of damage result
ing therefrom.
The question of prudence and the ideal
prudent man is always a matter for the
jury, and in an action by yard con-
ductOr" to recover damages for injuries
sustained by reason of the drain pipe
of tender breaking while the plain
tiff was using it in raising himself upon
the tender, the plaintiff, till a month
before the accident having been accus
toned to use an engine supplied with
grab irons" and the engine in use
when the plaintiff was injured being with
out grab irons, and the only hand holds
by which plaintiff could raise himself
upon the tender being the drain pipes,
which he had used frequently for "a
days before he was injured it was held
that the trial Judge committed no error in
instructing the jury that as 1.-The drain
pipe was not put upon the tender for a
grag IRON there was no negligence i'm
putable to the defendant by reason of
the weak condition of the drain pipe,
and that it was for the jury to say wheth-
grab IRON there was no negligence i'm
taking hold of the drain pipe and wheth-
er in so doing he acted as a prudent
man.
Upon the measure Of damage there was
no intrinsic error" in the charge Of the
trial Judge that the jury should give the
plaintiff 1.-The present cash value" Of his
injury, taking into consideration pain
3,
thing as punitive damages. But it would
have been proper for the judge to have
explained more fully the rule as to the
measure of damages.
BRYAN VS.. SOUTHERN RAILROAD co.
Affirmed.
Where an employee of railroad COM
pany working with squad of hands un-
der direction of an overseer, is injured by
a large piece of timber falling upon him
while the squad are engaged in putting
the timber upon the car, under the order
of the overseer, the company is not liza
BILE for the alleged negligence of the
overseer in ordering the hands to
perform the task which it is alleged was
too arduous for the number of men en-
ployed, as it does not appear that the
overseer had authority to discharge the
employees uEder his management.
MESSICK ct al VS.. FRIES ct al. Affirm
ed
Where a member of a firm buys the
interest of his CO. partner in the bust
ness and mortgages the entire stock of
goods to secure the purchase price OF his
partners interest, the mortgage providing
that monthly payments shall be made