The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-06-28
Supreme Court Digest.
reported by JOS. L. seawell.)

BESSENT. appellant VS.. SOUTHERN
RAILWAY COMPANY. From Forsyth
/ Affirmed.
No recovery can be had against a rail-
way company for injuries received from
its train by a person walking upon the
track, where it appears that both parties
were negligent, but that the injured per
son was placed at no disadvantage and
was warned of the approach of the train
in ample time to avoid the injury.
Where one walking upon railroad
track in the day time was run over by the
train and killed, and it appeared that the
deceased was warned by other persona
walking with her, of the approach of the
train; that the whistle was sounded and
that the noise made by the train could
easily have been heard by the deceased
in time for her to step from the track
Held that the failure of the deceased to
avail herself of the opportunity to escape
was the proximate cause of her death
and no wrong can be imputed to the rail
road company, even though it may have
been negligent.
FINISHING COMPANY VS.. oZMENT. ap
| pellant. From Guilford No error.
Equity will correct a mutual mistake in
u uttu NIlGH the mistake Is dQInlILcQ Oh
distinctly proved.
Negligence will not close the. doors OF
chancery against complainant when the
position of ,ne parties has not been there
by changed.
| Where, in an action to reform deed
| it appeared from plaintiffs evidence that
defendant rented a lot from plaintiff
known as "the store house lot" which
was well defined by visible marks and
boundaries, and that defendant bargained
with plaintiff for purchase of said LOT
and plaintiff delivered to defendant deed
therefor. which did not refer to the lot
as the "store house lot and called for
thirty-four feet more than was actually
contained in said lot; that defendant ad-
mitted that there had been a mutual mis-
take and offered to allow the deed to be
corrected upon payment to him of Ger
tain amount; it was held.
1. That there was no error in refusing
defendants motion for non-suit under the
Act of 1897.
2. That the issue, twas the thirty -four
feet included in the deed from plaintiff IL
defendant by mutual mistake" was suffi
GENTLY comprehensive to enable defendan.
to present his defense in all its aspects.
COGDELL. petitioner VS.. w. & w. RAIL
ROAD COMPANY. From Beaufort.
Upon petition Of plaintiff to re-hear this
case as reported in 100 N. C. 31S, it is
held
/. That the question as to the weight
which could be sustained by a sound
plank of certain dimensions, is not the
subject of expert or opinion evidence
| 2. That the court should have given the
instruction requested by plaintiff that
The law presumes that a person found
dead and killed by alleged negligence OF
another, has exercised due care himself, ;
instead of instructing the jury in lieu OF
such request that IAN inference arises
from the instinct of self preservation that
the person killed has exercised due care
himself. the court distinguishing the
terms Inference and presumption"
3. That the plaintiffs objection to tie
submission of the issue of contributory
negligence should have been sustained al
the allegation in the answer that the m
testate's death was caused by his owr
negligence and not by that of the de
PENDANT. was not statement of the dc
Tense of contributory negligence.
H. F. SEAWELL VS.. C. c. RAILROAD
COMPANY, appellant. From Moore
Affirmed \,
| The relation OF carrier and passenger
begins when a person enters the premises
of a railroad company for the purpose ol
boarding train, having at the time q
passenger ticket or intending to purchass
one. -
| 1t is the duty of a railroad company to
protect its passengers from injury, in
suit. violence and i'll treatment by ser
wants of the cmpany, fellow passengers o.
third persons.
The complaint alleger for first cause
of action that plaintiff, having in his pos
session a mileage ticket for transporta
tion over defendants road. entered its pas
senger station for the purpose of board
ing a train, and while in the act of enter
ing the train, two of defendants agent
(Ramseur and CarrolD began, with othe
persons unknown to plaintiff to assault
and beat him, striking him on the fac
and other parts of the body, with eggs
and used indecent and insulting languag
with reference to plaintiff and alleged 70
second cause of action that the assault
was committed in the presence of the de
PENDANTS agents while the plaintiff was
passenger, and that the said agents refuses
to offer him protection. but encourage
the assault
There was evidence, which for the pun
pose of defendants motion to non-sui:
must be taken as true; that the crow
who assaulted plaintiff with eggs went int
Ranseur's office (Ramseur being the agen
OF the company and that Ramseur cam
out with the crowd when they threw th
eggs, and was present when the act wa
committed and laughed and said: "Yo
did not egg him enough" that Carol
who was there to do anything that Ram
seur ordered, especially to handle baggage
threw eggs at plaintiff and that Ramscu
offered no remonstrance to the crowd an
was present when some one said to plair
4 tiff. Leave here, you Populist dog, yo
suck eggs" and that the conductor {