The news & observer., 1905-12-14

testimony Che being the only witness)
the Court directed Il non-suit anC
plaintiff appealed.
Held: While it is true that one
VINO enters on = railroad track oil
crossing IS required 20 look and listen
and when injured in consequence of hi;
failure TO do so, the view being unob-
structed, he IS guilty of contributory
negligence and cannot recover, it is
nevertheless held that, negligence haV-
ing been first established, facts and at
tcndant circumstances may so qualify
this obligation to look and listen as tC
require the question of contributors
negligence to be submitted to the jury
and in some instances the obligation tC
look and listen may be altogether re,
moved; therefore. if. IN the case q;
bar, tine negligence Of tho defendant is
established, the question OF PLAINTIFF
contributory negligence should have
been eft to the jury to determine un.
der proper instructions and on the
facts as they shall find them.
commissioners OF Rutherford County
Appellants, US. l.. X. Erwin ct AZ;
FROM tutncrforu. Affirmed.
Civil acton 70 tereclOSe a tax ccr-
uflcate heard on exceptions to the re-
port Of a referee. there was judg-
mcnt modifying and affirming the re-
port and on the report so modified
there was further Judgment dismiss
ing the action and plaintiff excepted
and appealed: ~.
Held: solitary exception in the
Wo1us the plaintiff excepts to such
rulings adverse to It and appeals is
contrary to the course and practice
OF the court and Violati"e of Rule 21
requiring objections to be noted by ex-
ceptionS briefly stated and numbered
The rule has added weight where thv
general exception IS taken in a case III
which there IS complaint containing
IS allegations, in which the referee
fled an, elaborate report to which
plaintiff took more than 81 exceptions
and in which the judgment by the
court was comprehensive. well-consid-
cred and painstaking.
w. II, Ammons vs.. Southern Railway
Coihpany. nrpeiIant; from Swain.
New Trial
Held: To entitle a passenger wrong
fully elected from train to punitive
damages, his leiectment must be ac-
cOmDanied by such circumstances as
show rudcncss or insult or must be
d. ended by aggravating circumstances
calculated to humiliate the passenger
2. Where the evidence was that the
plaintiff asked the agent for a ticket
to his destination and was told that
the agent had no tickets, but that
plaintiff could pay on the train ana
the fare would be 10 cents; that plain
tiff rendered the conductor so cents
but the latter demanded IS and
stopped the train and told plaintiff tc
get off which plaintiff did; and the
conductor used no force or improper
language.
He'd: That it was error to refuse al
instruction that IN no aspect of the
case could the plaintiff recover puni-
tive damages.
j. II. McAdcn, Trustee. vs. John
Palmer ct al from Cherokee. Affirm
ed.
Action to recover damages for cut
ting timber on certain land claimed
by plaintiff. From a judgment for
plaintiff, defendant appealed.
Held: When A. made entry in 1854
obtained survey in 1855. paid tine
entry price in 1858 and transferred
his entry to B. who obtained and reg
stered his grant in 1896; while G.
laid entrv on the same land and OBJ
tanned a Survev in 1859, took a grant
in 1867 and registered the same III
1884, any claim of b. to have G. OF
those claiming under him declared a
trustee in equity of the legal title
for him is barred by Code 15S provid-
ing that an action for relief not other
wise provided for must be commence
within ten years after the cause OF
action accrues.
2 AS between himself and the State
having paid the purchase price a
could cali for grant at any time;
but as between himself and the States
grantee for va'ue ne must assert hi
equity within tho time fixed by the
statute Or lose it, the registration ol
C's grant. in the absence of evidence
showing that the statute did not ruJ
by reason of coverture. infancy etc.
bring constructive notice sufficient tC
start the running of the statute.
A CrcnSl,aN and Wife VS. AshcvilI;
and Biltmorc Street Railway ant
Transportation Company. from Bun
cOmbe per CUrinn. New Trial.
New trial is granted for newly dis
| covered evidence without discussion
of the facts under rule in Hcndcn VS.
Insurance Company. 121, N. G. 49S
o. l.. Rose. APPELLANT. vs.. -. 4. Davis
| ct al. f"nD Swain. New Trial
Action brought under provisions 0
Section 2,319 of the Code aWardjn'
penalties bv suit or attachment fo
driven into tho state by residan
of another State and permitted to ru
at large between ADrii 1st and Novem
| Der 30. provided that said act sha
| not apply to cattle to the number O
/, twenty head for each zoe acres @
land owned. which MAJ be so drive
into the State and permitted to ru
at large bv any nonresident OF IN
State who MAJ own any estate in Ian
| within the State for one year @
higher. Plaintiff sought to recover o
120 head Of sheen driven into SW7i
county and ranged claiming that ~
had been 50 Tan"eJ by the defendar
who were entitled to range only y
according to the oroviSo as to tn
ownership of land. the defendant
claiming an estate in 1900 acres {
land. There was verdict for the dc
PENDANTS. Amon~ other things ~
court charged the jury that if tn
defendants in good faith thought the
had bona fide claim or title to 1.20
: acres of land then they would be e.