The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1904-12-11

sidewalk at the place of the acciden
Tor had exercised any, control over the
land for such purpose, and if SC
whether it had permitted the branch
Ito remain without a bridge and haC
provided no light at that place.
/ Where plaintiff. in an action against
la city to recover damages sustained
| by falling into a branch across the
Sidewalk in the night time, testified
THAT he was accustomed to pass the
1 dangerous place in the day time, but
at such times he left the sidewalk just
before reaching that point, : as other
people did, and that he had not passed
1.-THE place at night before the might
he was injured, at which time ahe did
mot leave the sidewalk as was his Gus
tom, he was not prejudiced by the
charge on the issue of contributory
negfgence that If the Jury believed
the evidence of laintiff he well knew
Iof the dangerous place, and failure to
use ordinary care in avoiding it would
render him guilty of contributory neg
lligence. ." 'a
| Hedrick V. So. Railway Co., appellant.
| From Davidson. Affirmed.
| 1t is competent for plaintiff, in an
action against a railroad company for
| damages for death of his intestate
caused by contact with a bridge over
defendants track. to introduce a por-
\ ton of a paragraph of the answer
which admitted inteState'S death as al
legged, without being compelled to in
troduce the remainder of the para
graph. Immediately following and pre-
ceded by a comma, to the effect that
the bridge across the track was prop
erly constructed and that at a point
on the track on each side of the
bridge, and some distance therefrom
defendant had properly adjusted ropes
for the purpose of warning employees
of the approach to the bridge. Lewis
". Railroad. 1872 N. c., 382; Stewart V.
Railroad, at this term.
In an action against railroad
company for damages for death of
plaiptiff's interstate caused by his
coming in contact with an overhead
bridge, there was evidence that de-
fendant had ropes suspended vertically
over the track at sufficient distance
from the bridge on each side, for the
purpose of warning employees standing
on the cars, but that this device could
not be relied on as a sufficient warn
ing, because the ropes sometimes be-
came tangled and caught up above
the brakemap's head, and that the
bridge was not sufficiently high tc
prevent striking one standing erect on
q car
Held proper to overrule defendants
ant was negligent if the jury found
that the bridge was too low to prevent
contact with one standing erect or
the cars, unless the jury also found
that defendant had provided warning
ropes which proved sufficient protec-
ton to in ordinarily careful and pru-
dent man: that mere knowledge by in
testate that the bridge was too low
would not render him guilty of con-
tributory negligence. but ii was his
duty to exercise ordinary care with
reference to the danger and the pc
culiar Situation-the greater the dan
ger, the greater the care-and in de-
termining whether intestate contribute
ed to his injury the jury might con-
slider the fact that he had served as
fiagman on that division of the road
for three or four months Immediately
before his death.
Wood v. Fleetwood. appellant. From
Perquimans. Affirmed.
A condition of n-alenation, ever
for a limited time, annexed to a devise
either in fee or for life, is void as
against public policy.
Where testator devised to his wife
for life and appointed her eXecutrix,
and the will provided that at her death
the heirs shall select IAN administra-
tor to MANAGE the estate" and make
settlement every year, and at the ex-
y -
death the testator's two children
should make partition of the estate.
Gown and occupy the property during
their natural lives and at their death
it should go to their lawful heirs.
and should they have no surviving
heirs" then to the testator's heirs. it
was held that under the Rule in Shell
ley's Case. a recainder in fee vested in
the testator's children, and the wife
having fully administered on the es-
tate, the provision in reference to the
selection of an administrator" upon
her death was rendered invalid.
Held further that the Interior lmi-
tation to the heirs of the testator upon
failure of heirs of his children, does
not render their estate contingent. as
the testator's heirs are necessarily the
heirs of his children.
The term lawful heirs in a devise
is construed to mean the heirs desig-
mated by law to take from their an
cestor.
When the words of a devise bring it
within the Rule i'm Shelley's Case, the
rule will be enforced-the devisees
contrary intention Notwithstanding.
But when the instrument indicates an
intention not to use the word heirs
in its technical sense but as description
personam, as bv the term "heirs of the
body the testator meant children, the
law Will eIluedVOF TO eHecludle ms III
tention.
The Rule In Shelley's Case applies
only when the same persons will taR
the same estate, whether they take
by descent or purchase; in which case
they are made to take by descent. But
when the persons taking by purchase
would be different or have other es-
tates than they would take by descent
from the first taker the rule does not
apply, and the first taker is confined to
an estate for life.
London V. Bynum. appellant. From
Chatham. Error.
Where corporations assumption of
individual Indebtedness of two partners
of firm was part consideration for
by the firm of partnership
property, the indebtedness of the two
partners being secured by a deed Of
trust on the land conveyed to the cor
poration and also by a deed for land
belonging individually to a third part
ner, it is held that there was an inn
piled promise by the corporation to re-
lease the individual land from the
burden of the debt.
THE PROFESSOR OF SIGNS.
THO 81 ot fen,,, N ENvax,ah IF an