The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-06-07
BILL ARP.

assignees claim and the assignment Of the
policy.
LYMAN, appellant vs.. SOUTHERN RAIL
WAY COMPANY. From Buncombe.
Affirmed.
Declarations of an agent made after the
transaction are not admissible.
A warehouseman is responsible only for
failure to exercise such care and diligence
&C prudent persons of the same class are
wont to exercise towards such property,
or in the management OF their own prop.
erty under like circumstances.
The fact that the goods were destroyed
raises no presumption of negligence on
the part Of the bailee and the burden OF
proving negligence IS on the bailor-
Negligence of the bailee is not cor.
elusive from the fact that he had ex-
plosives in the warehouse, when it does
not appear that the presence of the ex-
plosives prevented the fire, which de-
stroyed the goods from being extingushed.
ORR VS.. BELL TELEPHONE COMPANY,
appellant. From Mecklenburg. Affirmed.
The servant will not be held to have
assumed risk incident to dangerous work,
when the master fails to perform his duty
of furnishing safe and suitable appliances,
unless the act resulting in the servants
injury is obviously SO dangerous that,
even in its careful performance, the IN
herent probabilities of injury are greater
than those of safety.
The plaintiff was injured while engaged,
with others, in taking down telephone
poles. and it appeared that the injury was
the result Of failure to use the proper
tools for such work, and that the proper
tools were not at hand. The court sus-
tains the former decision in the case 13O
N. c. CPD to the effect that it was the
duty of the defendant to furnish the
proper tools, and that such duty could not
be delegated to a fellow servant OF PLAN
tiff. so as to relieve the defendant and
that the fact that plaintiff attempted to
do the work without the necessary tools
was not in itself an assumption of the
resulting risk.
HARRILL, Administrator VS.. S. G. e GA.
Elk. RAILWAY COMPANY, appellant.
From Rutherford. New trial
In an action for damages for death Of
plaintiffs intestate by alleged negligence
of defendant, it appeared that the in
testate was killed by the giving way OF a
trestle over which he was attempting to
drive an engine and cars; that there was
a great food in the stream and the see
ton master tagged the train as it ep-
preached the trestle and told the intes-
tate of the danger, and warned him not
to cross; that the section master, in
testate, train hands and neghboring peo-
pie went on the trestle to make an ex-
animation, and while they were on the
trestle the intestate went back to his en-
CINE and without signal or authority from
the conductor, moved the train forward
on the treste; that after the engine had
crossed that part of the trestle imme-
diately over the water and had reached
the portion over the opposite bank of the
stream, one of the bystanders exclaimed,
Jake (the intestate) lis safe, and the
trestle instantly gave way and the en-
CINE and tender weres pulled back and
fell into the water; the witness who
made the exclamation testified that just
before the engine went down he said that
the intestate was safe, because witness
thought the intestate had the engine on
the main land, that the track was not
in good shape and he looked across the
trestle because he did not know what
was going to happen,
Held that the exclamation was adrnis-
sible as a part OF the res gestae, and the
court intimate that the intestate's death
was caused proximately by his own negli-
gence.
The accident occurred in South Carolina,
infestate was a resident of that State. de-
PENDANT is a domestic corporation of this
State and plaintiff qualified as adminIstra-