The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1902-10-14
Supreme Court Digest.
(Reported by JOS. L. seawelp


New trial
In an action to recover damages Tor
nersonal injuries sustained by alleged
negligence of defendant, the evidence
wac that plaintiff and two female COM
panions walked nearly half way acro99
defendants trestle and bridge, 26S leet
long. knowing that train Would pe uuI
in few minutes and that they couiu
not cross the structure before the IRAN
arrived, if it came when eXpected' 'n"'
when they were half way across Tram
Appeared in an opposite direction honi
the regular train, which they suposeu
would arrive IN a short time; that tIe
approaching train was not TO cross INC
trestle. but was to take siding al the
station about 400 feet from ire treSIle
to allow the regular train to pass; that
the plaintiff not knowing this, came Dach'
with her companions, towards the ap-
preaching train and one Of the woman
ran to where the trestle was low enough
for her to lump and sprang from the
track and was not injured, but plain
tiff being too frightened to run jumper
from the trestle where it was about FOUR
teen feet high and was injured. ram
tiff and two other witnesses testlhed that
when plaintiff jumped from the trestle'
the train was close to her and did not
stop until the engine had passed the
point from where she sprang, and elgh1
other witnesse testified that the tram
stopped twelve or sixteen feet from the
trestle and did not go upon the trestle
till the women had jumped off, and
another witness. who was upon the train
and an employee of defendant, testified
that he called to the plaintiff not to
jump. and that he was heard 125 yards
away
Held that there was error in refusing
to instruct the jury that if they be-
lieved from the evidence that the engine
stopped and did not go on the trestle
until the plaintiff had jumped. they should
answer no" to the issue, WAS plaintiff
injured by the negligence of defendant?'
SWIFT ct al, appellants V. DIXON ct al.
From Greene. Error.
Where, in an action to foreclose a deed
of trust given by husband and wife, err
vice of summons was made on the wife
and not on the husband and the summons
was not returned and the case never
docketed but another action was com
menced at the next term under the same
deed Of trust and summons in the last
action was served on the husband and
not on the wife, and judgment was taken
in said action for want of answer. sale
made and confrmed-one of the plain
tiffs becoming the purchaser-it was held.
ID That the wife was not a party to
the last proceeding instituted and was
not bound by judgment therein
hl1rd of
validity of the judgment in said pro-
ceeding is upon the purchaser and those
claiming under him.
80 That the purchaser al the fore
closure sale got no title and those pur
chasing from him got only color of title,
which has ripened by seven years ad-
verse possession and failure of the wife
to bring action within three years after
husbands death.
(4) That as the deed OF trust from
husband and wife reserved her home
stead In the land, and the homestead was
laid off before foreclosure sale and the
commissioners deed and all the subse-
quent deeds for the land contained the
same reservation, the plaintiffs are not
barred from recovering the land includ-
ed in said reservation.
PARKER, appellant V. COBB ct al. From
EdgecOmbe. No error.
Land was devised to IN trust for
support of his mother and brother dur
ing their lives, the surplus to go to A
with remainder in land in fee to after
death of said mother and brother but
if A die leaving not more than one son
then to descend to AS son subject to
charge of 81 600 in favor of two nephews.
The mother died and then died. leaving
only one son, but his brother surviving
Held the devise in fee to AS son does
not take effect til death of AS brother
and that until such event the $1,000 is not
demandable and bears no interest. The
land is not chargeable at the same time
81 900 to the neDhews.
AYERS ct al v. MAKELY, appellant
From Hyde. Appeal dismissed.
a mortgage (AI) agreed that the mort
gagged land might be sold Ito Al by the
mortgagers CIV & c., and the payments
of the purchase price should be first APP
piled to his mortgage until it was re-
'duced to an amount named, and the pur-
chaser (A) should then execute to him
(M) a first mortgage for the balance of
his debt, and a scond mortgage to the
grantors CIV. & CD for the balance of
the purchase price. After said mortgage
(Nl) and his mortgagers CIV. & CD had in
stituted action of ejectment against the
purchaser CAD upon default in payments
of the purchase price, said mortgage
(N) agreed with wv & c. to institute
action against CIV & c. to foreclose their
prior mortgages to (M), and to bid in the
land, and if the amount bid was less
than the amount of Ms debt to apply
bid and cancel said debt.
Held that upon the debt being so can
celled the effect was to relieve of his
debt to NJ
Judgment was rendered against A in the
action of eiectment instituted by NJ. w
and c, and the sureties to the additional
bond of A given in said action to secure
the rents costs and damages that might
be sustained by NJ, sued NJ to recover
amounts paid by them as such sureties,
alleging that A was not elected by pro-
cess of law, but voluntarily surrendered
possession to NJ on Ms promise that A
and mis- sureties should not be held re-
spOnsible for rents profits. ETC., and that
NJ would hold said sureties harmless
against demand for rents and profits by