The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1903-01-04
Supreme Court Digest.
(Reported by Jos. L. Seawell)
STATE " RAY, appellant. From Hall

only such powers as are expressly grant
ed in its charter. or such as are neces-
sarily implied by the powers expressly
granted 107 N. c. 962.
A town ordinance which contravenes a
common right not within the police pow
er of the municipality is void, unless leg
islative power to make it has been ex-
pressely conferred. is n. c. 221.
An ordinance of the town of Scotland
Neck providing that it shall be unlawful
for grocery and dry good stores and other
places where merchandise is bought and
sold Except drug stores) to be kept OPEN
later than 7:30 o'clock p. m, except Sat-
urdays, is held to be void in the absence
of special legislative authority to enact
the same.
LIVERMON V. RAILROAD CO., appellant
From BERTHE. Affirmed.
Action to recover the value Of cord
wood burned through alleged negligence
of defendant while piled up along its
track awaiting shipment. The wood was
piled up on the right of-way near the
track by permission of defendant and re-
manned there from August until the fol-
lowing February. The right of way was
covered with dead grass and other in
ammable material adjacent to the wood
which was burned by sparks emitted from
the smoke-stac of defendants locomo-
tive. Motion for judgment of non suit
was properly refused. Permitting the
track and right of-way to become covered
with combustiblc material was at least
evidence of negligence. There was no
error in the further progress of the trial
iv1 fIn ivef s,,Jr-
to the jury.
THOMAS v. SOUTHERN RAILWAY CO,
appellant. From Haywood. Error.
The facts agreed" admit the destruc-
ton of the plaintiffs trunk "by fire in a
wreck Of the train caused by slide of
dirt and rock upon the track" but are
defective in that the essential element
of negligence, upon which the validity
of the contract depends, is not determined
and stated, and the case must go back
that this may be ascertained by jury,
if not agreed to by the parties.
A common carrier IS an insurer of a
passengers baggage against all loss or
damage, except that caused by the act
of God or by the public enemy, and the
carrier cannot exempt itself from liza
bility for negligence of itself or SER
wants.
There is a REPUTABLE presumpsion of
negligence, in this case, from the fact
that the train was deraled by running
into a pile of dirt and rock upon the
track.
STATE v. DIXON, appellant. From
Jones. Affirmed.
Indictment for murder. The plea in
oh TOW
ground that the County Commissioners
added no new names to the jury list but
merely purged the box by taking out
the names of those who had not paid
taxes, was properly refused. Under Sec
tions 1922 and 1928 of the Code. the re-
vision of the jury lists is only directory
State Y. Perry, 122 N. c. at p. 1921.
To contradict statements made by wit
nesses on the trial of an indictment for
murder, evidence of their statements
made under oath at the coroncrs inquest
is admissible.
Error was assigned by the prisoner that
the jury, during their deliberations. had
the gun and court docket in full view.
Even if this had been found as a fact
and set out in the case. yet it is not
enough that there was opportunity but
the court must find that in fact the
jury were prejudiced thereby, in order to
make 1t reversible error.
Where prisoner escapes Jail Since the
argument, 1t is no ground for any favor.
The court in such case can dismiss the,
appeal or pass upon the assignments of
error. 119 n C. 90S; 107 N. C. 772.
MAGGIE " GREEN. appellant v JOHN
To render the wifes condition intoler-
able and life burdensome, as ground for
divorce, it is not necessary that there
should be a striking or even touching
of her body; but foul and unjust accusa-
tions often repeated, with withdrawal
of intercourse and driving the plaintiff
from defendants home and offering to
strike her, are sufficient.
The complaint in an action for divorce
a mensa alleged in substance that de-
PENDANT, in the presence of neighbor, |
cursed and abused plaintiff, drawing back |
his fist to strike her (Which she avoided |
and drove her from his house, saying that |
he did not respect or love her; that de-
fendant was Jealous, and if plaintiff |
spoke to any man or went to a neigh |
boris house the defendant would not |
speak to her for several days, and that |
she did nothing to cause jealousy-stat- |
ing her conduct; that for six months |
prior to September 4, 1900, (the day the |
defendant drove her from his house, the
defendant had slept in an clubhouse, re-
using to sleep with plaintiff and with |
lrawing marital intercourse from her
md that defendant had denied that he
was the father of plaintiffs children, and
plaintiff aveTred that such indignities
nave rendered her condition intolerable
md life burdensome. Upon demurrer to
he evidence, the court gave judgment of
lon-suit; Held. error.
v. FURNITURE CO, appel
liant. From Davidson No error.
In an action to recover damages for
INJURIES sustained by child nine years
I'D from q machine which he was help
ng to operate while in defendants en-
,loyment, it was not error to submit to
he Jury the question whether the facts
n connection with the jury, the age of
he child, his inexperience, ignorance of
he nature and danger of the work and
he failure to instruct him, constituted
Negligence on tie part of defendant.
SIMPSON V. ENFIELD LUMBER CO., ap-
pellant. From Halifax. New trial.