The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-01-12
Supreme Court Opinions
lRenorted hr Jos. 1. seawelD.

(kpp0rted by JOS l.. SeaWell).
COBEY VS.. n. c. RAILROAD CO.,
Appellant. From Wake.
Upon petition of defendant to rehear
the court adheres to it's former ruling
12S N. c., 354. The act of the Legisla-
ture enormously printed in the Private
Acts, 1897, chapter $50 providing that
any employee of railroad who shall
suffer injury in the course of his en-
ployment by the negligence of any other
employee of the company or by defect
in it's machinery, etc, shall be entitled
TO maintain an action against the COM
pany, and that any contract to waive
the benefit of the aforesaid provision
shall be void, is constitutional, and de-
prives railroads of the defence of as
sumption of risk, whether resting in con-
tract or however pleaded. But the act
does not forbid the plea of contributory
negligence.
1t was negligence in the defendant in
this case to have furnished an engine
obviously defective, when the defect
could have been so easily supplied
SMITH. Appellant, VS.. SOUTHERN
RAILWAY co. From Alamance.
Plaintiff was told by defendants
tached from the engine, and while so
doing he discovered that the car was in
motion, being then attached to a train.
No notice was given plaintiff that the
car had been coupled up. He stepped
off on the platform while the train was
moving and in doing so his leg was
broken; Held. negligence in defendant
and that plaintiff was entitled to re-
cover.
PERRY vs.. w. n. c. RAILROAD CO,
Appellant. From Burke.
The decision in this case, 1913 n. G.
All, affirmed. The trial judge can as
matter of discretion excuse juror
Challenge to a juror is not given to
party in order that a particular indi-
vidual shall go upon the jury. He has
the right to accept or reject, but not to
select the juror.
The Western North Carolina Railroad
Company still exists under its charter as
a corporation of this State, and a rail-
road company in leasing it's road is
liable for the negligence of it's lessee in
the operation of the road.
BOND VS.. WILSON, Appellant. From
Burke.
Where credits are endorsed on a note
the plaintiff must prove aliunde the en-
dorsements, that they We're made at the
time they purport to have been made,
or at least within ten years after the
last payment and also within ten years
before suit brought, in order to render
them admissible as evidence of pay
ment in an action where the statutory
bar is set up as a defence. Nor are they
evidence of the agency insisted on here.
In cases where dates of endorsed
credits themselves show that they were
entered after the statute became COM
plete bar, it is necessary to prove
actual payment.
McARVER VS.. SOUTHERN RAILWAY
CO., Appellant. From CASTOR.
Complaint alleged that defendant ran
it's train negligently against intestate
while in a helpless condition on it's
track when the employe of defendant
saw or should have seen him. There
was evidence that intestate was drunk
and that the engineer could have seen
him by keeping proper lookout;
Held, that the failure to give warning
by bell or whistle of the approach of
the train cannot be considered as evil
dence of negligence, as being the proxi
mate cause of the injury, but only as
evidence upon the question whether a
proper lookout was kept by the en-
gineer- A new trial was awarded the
defendant.
THOMAS VS.. RALEIGH & AUGUSTA
AIR LINE RAILROAD Co, Appel
liant. From Wake
Tho act Of Eahr11ary % 1907 dppriVpg
railroads of the defence of assumption
of risk, whether resting in contract ex-
press of implied, and whether pleaded
directly or under the doctrine of fellow
servant. Coley VS.. Railroad, at this
term approved. The plea of contribu-
tory negligence is matter of defence
with the onus upon the defendant.
Plaintiff was in the service of de-
PENDANT for two months and he and other
hands We're ordered by the section mas
ter to remove a hand-car from a fiat
car at point on an embankment where
the ground was frozen and slippedy. The
section master was warned and knew it
was dangerous place and was re-
quested TO direct the engineer to pull
upon few yards to level ground. but
refused. Plaintiff also knew it was
dangerous place but obeyed the order
for fear Of losing his job. While being
moved the car got beyond control, fell
down the embankment and ran over the
plaintiff, breaking his leg and other
wise injuring him. There was conflict
of testimony as to it's being a dangerous
place; Held, that taking the evidence in
its most favorable light and excluding
all assumption of risk. the plaintiff
cannot be deemed guilty of contributory
negligence, and the jury SO found, and
they also found that defendant was
guilty of negligence.
STATE VS.. CALDWELL, Appellant
From Madison.
Prisoner was indicted for murder and
the State, before the jury We're empanel-
ed, and, with permission of the court,