The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-09-18
Supreme Court Digests.

(Reported every week by Jos. L.
SeaWell.)
,Meelxins. Admir- V. No. & So. Railroad
Co, appellant. From Tyrrell. New
trial.
Where incompetent testimony was
admittedWon a former trial because
mot objected to and the witness dleu
lpending another trial of the acuon,
his incompetent testimony is not ad-
Missile on the second trial
Bottoms V. S. A. l.. Railway, appel
liant. From Northampton. Error.
1t is not negligence in a rallfoau
company to fail to adopt improved APP
Ipliances merely because they are
Unknown" and approved" but 1t Is
negligence not to adopt those Whlcn
are approved and in general use.
Witseu V. Railroad s12O n. C., 5oa;
Greenlee " Railroad, l22 n. c., 9I9;
Troxler v. Railroad, ia n. G., Isl.
AS evidence that an unusual guam
tity of large sparks were emitted from
a locomotive which was provided with
a spark arrester tends as much TO
| prove that the device was not the most
Improved pattern as that it was out
of repair, 1t cannot be held that the
latter proposition was the real queS-
ton at issue and therefore rendered
harmless and erroneous instruction as
to the company's duty in providing
Improved appliances.
COPELAND V. Wireless Telegraph Co.,
appellant. From Dare. No error.
The provision in section 211 OF Inc
Code that any person receiving or
collecting moneys within this state lof
any corporation of this or another
State shall be deemed a local agent
| for the purposes of service of sum-
mons does not exclude one who has
| charge of the business of corpora
| ton and management of its AFFAIRS,
but no authority to receive or collect
it's money
| The local operator of a wireless tele-
graph company who was in sole
tcharge of it's property at the point
where he was stationed and had re-
ceived messages from ships at sea for
pay, though the office was not open
! for general business. is the COM
pany's 'local agent" within the mean
! ing of section 217 of The Code.
1T is optional with "a creditor to join
the amounts claimed under different
contracts and bring one action there
fore or to sue upon each item separ-
ately. Fort V. Penny, 122 n. c., 23o;
Magruder V. Randolph, II n. c., ~;
BOYLE v. Robbins, II n. c., 1870; Cald-
well " Beatty, 50 n. c., 365.
The plaintiff is not bound by
1 statement rendered of the entire
| Il lllOunt uut. ulIICSS tIlC elSSONiAS ~
rendered is accepted as true.
! Graves v Norfolk 4 So. Railroad Co,
appellant From Pasquotank. No
| error
In an action for damages the issue
! as to plaintiffs contributory negl-
gence should not be found against
| him unless it is also found that hii
negligence was the proximate cause
of the injury. Edwards V. Railroad,
1929 N c.. rs; Lindsay V. Railroad, 132
| n. c., SO.
! When admitted or proved facts
clearly show negligent breach OF
duty which proximately caused the IN
jury, the question of negligence or
contributory negligence is for the
court. When the. facts are contro-
verted or negligence is not so clearly
shown that the court may pronouncd
upon it as matter of law. the question
! is for the jury.
The court is not required to give an
instruction which is incomplete in it
self or not justified by the evidence.
and which excludes from the jury
| testimony proper for them in finding
I the issue or which requires them 70
treat, as a conclusion of law, even
under instruction of the court, thai
which is in its nature d mixed ques-
1 ton of law and fact. =
An appellate court Will NOT pre-
sumo error by the trial court.
! Where a railway postal clerk sued
! to recover damages of railway com
pany alleged to have resulted from
defendants negligence in causing its
train TO jerk violently in starting, and
defendant alleged contributory negIi-
gence in that plaintiff, being lame,
undertook to carry a heavy mail saci
on his shoulder and fell over another
sack which he had carelessly left on
the floor, the issue of contributorH
negligence was properly submitted tG
the jury
In an action by a railway posta
clerk to recover damages of a railway
company alleged to have resulted from
defendants negligence in causing i'll
train to start with a violent jerk. thu
defendants prayer upon the issue o.
contributory negligence that if thl
plaintiff Ca paralytic) in his feeble
condition, walked across the car with
a heavy mail sack on his shoulder
and was injured by falling over saclj'
which he had left on the floor, he was
guilty of continuing negligence which
caused or contributed to his injury
land the issue should be answered
Eyes" was properly refused.
Il 1nxp