The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-05-10

the cogs and knives under the ma
chine were not protected as they
should be and that there was inn
proved machinery by which such dan
gerous portions of the machinery
were protected, which should have
been used by the defendant. The case
had before been set for trial in Ran
dolph county and plaintiff had taken
a non-suit On the hearing below
defendant attempted to prove an adj
mission as to the plaintiffs negligence
made by former counsel on the first
trial. Held, Cd That an admission of
fact by an attorney can only bind
client when distinct and formal and
made for the purpose of dispensing
with proof of a fact on the trial and
less formal admissions of counsel at
a former are not evidence against
client at a subsequent trial CD 1t is
the law of this State that where on
the facts, admitted or established the
question of the existence or absence
of actionable negligence is clear, so
that there can be no two opinions
among fair-minded men in regard to
1t, then the court must say whether it
does or does not exist; and this rule
extends and applies not only to the
negligent breach of duty, but also to
the feature of proximate cause.
Abernethy VS.. Yount, from Cataw-
ba, error; Connor j.: Plaintiff sued
upon a note which defendant denied
making, saying that the only paper
he had signed was an application for
insurance. Plaintiff put on an al
legged handwriting expert, who testi-
fed, over objection, as to the similar
lty of the writing on the application
for insurance and on the note al
though he had never seen defendant
write. There was a verdict for the
plaintiff and the judge set if aside.
and plaintiff excepted and appealed:
Held. That in such case it was error
in the court not to have specified the
ground upon which the verdict was
set aside, whether in his discretion or
for insufficiency of proof
Pump Company VS. II. r.. from Ca
tawba Self & Whitener, for plaintiff:
3 j. Erwin, for plaintiff, appellant;
Brown, j.: Held, That, without decid-
ing constitutional questions raised on
the argument as to overcharges col
lected on freights shipped into this
from foreign States, the testimony of
ueIendant's agent that there had been
an oVercharge was incompetent. the
pest evidence being the freight sched
ules and the laws regulating freight
charges taken with the amount of
lrelght shown to have been collected.
cameron Barkley Co. VS. Power Co:
L: M, Huffman and L. l.. Cain for
plaintiff, S. j. Erwin for appellee. no
error. Walker, j.: The defendant.
through its president made contract
win the plaintiff for the purchase of
. CofIlss engine. Defendant alleged
that It's president was too drunk at the
Tune TO contract In response to the
issue, What damages is the plaintiff
entitled to recover?" the jury an
sWered nothing The case was decided
on the point of whether or not the
president in his condition was able to
contract: Held, That the rule is thar
complete drunkenness, which renders
a man non compos menus, is an ade-
quate defense, and the question is one
Tor the jury The court took occasion
to say that, if the agent had been
very drunk, instead of the purchaser,
the contract would have been binding
on the plaintiff.
Bolick VS.. II. r.. from Catawba;
Self and Whitener and Hufham for
plaintiff, appellant. S. j. Erwin for de-
PENDANT. Plaintiffs intestate had a
suit pending against defendant for
personal injuries, and after his death
the administrator sought to be Joined
in the action, alleging that his intes-
tate had died by reason of the in
juries received: Held That the action
for personal injuries abated. and that
plaintiffs remedy for the death was
under the provisions of section 1898
of the Code.
Moore vs.. Industrial Company, from
Caldwell; w. G. Newland for plaintiff,
appellant, S. j. Erwin for defendant,
affirmed. Plaintiffs action was to re-
cover on a judgment from land mort
gagged by the defendant on the ground
that the mortgage was am incorpor-
ator of defendant company and that
his claim was for labor performed:
Held, That there is no statute to pre-
vent a mortgage by a corporation to
an officer or incorporation and that the
term laborer in the statute applies
only to those performing sustained
physical work for a livelihood
Cases Argued and Appeals Set.
Cases were argued from the Four
teenth District as follows: State VS.
Garland, Attorney-Ge for State,
A. c. Avery for defendant. State VS.
Shade, Acknowledgement for State,