The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-06-22
Supreme Court Decisions.
(Reported by JOS. L. seawell.,

(Reported by JOS L. Seaweu)
BROOM, appellant, VS.. BROOM. From
Union No error
On trial for divorce the wife gave tes-
timony that the charge of incontinency.
as testified to by witnesses against her.
was untrue. and it was held that her
denial was admissible She was not tes-
tifying for or against her husband Sec
tion 5SS of the Code commented on.
MULLEN VS.. LAKE DRUMMOND
CANAL CO., appellant. From Camden.
Affirmed.
Plaintiff claimed damages to land by
reason of defendants widening and deep
ening its canal, and throwing large guam
titles of mud and sand into lead
ditch" which obstructed the flow of wa
ter and diverted the water off of de-
PENDANTS right of way, thereby flooding
and injuring plaintiffs land. Held that
plaintiff is entitled to recover.
No damages are contemplated in the
original condemnation. of the land ex-
cept such as necessarily arise in the
proper construction of the work
There was evidence of negligence
here to go to the jury, and none tending
TO show that the ditch could have been
permanently repaired by plaintiff at a
cost less than his injury, even If it
had been his duty to do so. The de-
PENDANT failed in it's positive duty of
keeping the ditch open CThe cases of
Ferebee and Williams VS.. same defend
ant are controlled by the decision in this
easel.
BINGHAM VS.. C. c. R. r. c., appellant
From Mecklenburg. Error
Plaintiff was foreman of lot of hands
in the service of defendant and was re-
quired to look after Waterways and Gull
verts and repair them according to in
structions of the road master. At the
time of the injury complained of he was
instructed to inspect a culvert and had
lever can and four men under his
control. he saw a man on the track with
veloeiDede car about 200 yards ahead
of him. The mans coat sleeve caught
in the gear of the wheel and threw the
velocipede from the track Plaintiff was
running the lever car little faster than
the velocipede car. and when he saw it
derailcd, he touched the lever of his car
and stepped on the handle at the center
Of the car. and then the car struck him
the rclocipede car, being higher than
the lever car, caught his foot betweenn
the two cars and mashed it; Held that
defendants demurrer to the evidence
should have been sustained.
GWALTNEY vs. PROV. ASSURANCE
SOCIETY, appellant From Catawba.
Affirmed
Action TO recover the amount paid by
NI1;,
-plaintiff alleging in the complaint that
fraud, d. 'eit, ETC., had been practced
upon him by defendants agent and that
the company had cancelled the policy
Defendant demurred. admitting the allie
cations in the complaint. And in sus-
tanning the ruling of the court below
,overruling the demurrer) this court
says, without passing upon the matter or
fntimating an opinion. that it would not
like to sustain a demurrer which admit
ted the allegations of deceit and fraud
which are set forth in the complaint.
RAIFORD VS.. W. & w. r. R. CO., appel
liant. From Wayne. Error
Plaintiff was hurt while working in de-
PENDANTS shop dismantling a locomotive
which had been injured in collision
and while so engaged a piece of iron
fell to the track below, and in some I'M
accountable way struck plaintiff while
standing off the track and at the end of
the bumper. The piece of iron was kept
in place under the bumper by an iron
rod fastened by a nut, land this nut was
unscrewed from the bolt and the bolt
withdrawn by the first workman" and
the plaintiff alleged that the first work
man left it in that condition. with that
exception, it was not alleged that de-
PENDANT was at fault Held that plain
tif's hurt was accidental and defend
ants motion to dismiss should have been
allowed.
SHARPE VS.. so. RAILWAY CO., appel
liant. From Iredell. New trial.
Profits become a measure of damages
only when they are within the contem-
plation of the contracting parties and
when they can be reasonably ascertained
by calculation.
Plaintiff sued for dana ges lin the loss
of business) resulting from the alleged
negligent failure of the defendant to de-
liver certain parts of mill machinery to
plaintiff, and that the delay in so doing
worked injury to plaintiff in operating
his mill and he was forced to stop for
a month or more. To show loss from
the non-use of the mill evidence was
admitted to prove what the profit would
have been if the mill had not stopped;
Held error.
IN RE SMITH (Pension Case). From
Burke. Reversed.
Controversy without action. Where a
pensioner dies after his application is
filed and before the warrant is issued.
the amount does not constitute assets of
his estate. but the warrant must be re-
turned to the auditor for cancellation
But if the pensioner be living at the
time the warrant issued and died before
receiving it. then it would become assets
of his estate.
HUNTER VS.. W. L. TELEGRAPH CO.,
appellant. From Guilford. New trial.
Action for damages for mental anguish
suffered by plaintiff by reason of the fail
ure of defendant to deliver telegram
announcing the death of a five-year- old
child who was plaintiffs second cousin;
Held
A telegraph company cannot insure the
delivery nf Doacca hu ic Iiabln for