The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-07-06
Supreme Court Decisions.
tReported by JOS. L. seawell.)

CURTIS VS.. SOUTHERN RAILWAI,A IN
pellant. From Burke. New trial.
where, IN an action to recover dam
ages of railway company for injuries
alleged to have been caused by negli-
gence of defendant, the issues submitted
were ID Was plaintiff injured by the
negligence of defendants 81 did plain
TIL by his own negligence contribute ia
his injury? Notwithstanding plain
TITS negligence, could defendant Ly ex-
ercising ordinary care have prevented
the injury? (D What damage is pIain-
tilt entitled to recover? 1t was held
error to charge the jury that The third
Issue was 1.-THE main issue and the first
issue will be answered as you ar swer the
third issue" If defendant was not pri-
Earily negligent, the issue of contribu-
terry negligence was immaterial
A railroad company will not be held
to the same degree of responsibility to a
trespasser as to passenger or an en-
ployee.
TOMPKINS Co., appellant, VS.. DALLAS
COTTON MILLS. From Mecklenburg.
New trial.
The measure of damage for default in
contract to deliver mill machinery is a
fa1r rental value of the mill for the loss
OF time caused by the failure to deliver
the machinery Ii this cannot be accu-
rately determined, then the law Will al
low, as the measure of damages, the le-
gal rate of interest upon the capital in
vested, not because this is an accurate
criterion. but because it is approx
mately just.
-
RICE vs.. n. & c. r. r., appellant From
BERTHE. Affirmed.
Neither corporation nor an Individual
can divert water from its natural course
SC as TO damage another. They may in
crease and accelerate, blst not divert
Whether water has been diverted is an
issue of fact for the jury, and the effect
of such diversion is question of law
for the court.
If a natural basin has absolutely no
outlet. no servitude rests upon any OF
the adjoining lands, and the recourse If
the owner of the land upon which the
basin is situated is to proceed nder
Chapter 80, Volume | of the Code.
In an action to recover pernar mt
damages to plaintiffs land caused by III
collection and diversion of surface ca.
ter, the questions whether the plaintiff
would not take 5000 for the land; and
whether the water could have been turned
ir any other direction without great ex-
tense, were properly ruled out as incom-
petent.
JERVIS, Admir-, VS.. LEWELLYN, EXT.
appellant. From Surry. Reversed.
A testator dying in 1861 devised ana
bequeathed to his wife for life all his real
and personal property, and at her death
800 to a negro slave. The slave died in
1861 and the testator's wife died in 1890
Held, that the slave being unable to take
the legacy at the testator's death, her
inability was not aided by SUBSEQUENT
emancipation, and the legacy lapscd.
JOHNSON VS.. A. & N. c. r. R. c.. ap-
pellant. From Wayne. No error.
The defence of contributery negligence
must be set up in the answer and proved
on the trial. Acts 1887 Chapter 80
Clarll's Code (3 Ed p. 327.
As u general rule person who gets
off moving train is guilty of contribu-
tory negligence. An exception to this
rule IS where a passenger is CO mn and
ed or invited uy the conductor to get
off a train which is moving so slowly
that the danger in alghting S not APP
parent to a reasonable man, and The pas
scnger in alightlrg IS injured.
The court below was justified in leav-
ing the issue of contributory Iealigence
to the jury where t appeared that the
time allowed at the station was too brief