The semi-weekly messenger. [volume] (Wilmington, N.C.) 1897-1908, 1905-11-28
THE FOOL HORSE, CASE
Decision of Majority of Supreme Court
Sustains N%onsuiting of the Plaintiff
in a Railway Case.

Among the decisions handed down
by the Supreme Court last evening Vas
kearns VS.. the Railway, in which the
court, by a vote of three to two, sus-
3Atined the Superior Court in nonsutt-
the plaintiff. The Chief Justice
hes one Of his vigorous dissenting
opinions, in which he cites the al
Legged earning Of the railroad and otler
na ate 4;... :. g.. 49,. 80, ur..
II, 1902, the plaintiff, driving his horse
and top buggy across the defendants
track in the town of Thomasville, af-
ter he had gotten across and was
thirty-five o forty feet from h cross
ing and about the time the engine
passed the crossing, the horse began
to back and continued backing anc
backed into the cars, about the second
or third coach. The plaintiff test
fed on the stand that as the engine
was passing the horse began to back
n he urged him forward. Il do cot
know that | said my horse was an Old
fool, but she was an old fool or else
she would not have backed that way
The witness said that he could see
the engineman looking out of his wild
dow. He was going very slowly, look
ing at this man He stopped the train
very quickly. He went about ten or
fifteen feet, apparently holding his
train under control, looking at this
situation"
In the Superior Court Judge Long,
after hearing the evidence, said that
the plaintiff had failed to make out
a case of actionable negligence against
the railroad, and entered a nonsuit. In
writing the opinion of the Supreme
Court Justice Brown SustainS the lower
court, that the evidence was not suf-
ficient to justify d verdict for the plain
tiff. In conclusion. Justice Brown
writes: I'VE are of opinion that the
prOXimate cause was Ito quote the IAN
guage of the PLAINTIFF the eoJi
horse"
Two dissenting opinions were f'ea.
one by Justice Hoke and one by Chief
Justice Clark. jill stice Hoke holds tnat
while no serious question is involved
that sit is onIv in clear and excep-
tionable instances that the question or
approximate cause should be with
drawn from the jury n determines
by the Judge"
Chief Justice Clark declares in his
dissent that the jury should have de
cided whether the approximate cause
was the foolish horse" or the d.
PENDANTS servant, and discusses me
sacred right" Of trial by jury. The
!, o!ssert includes this paragraph: The
~earity Of power between John ami
Ms armed barons was not great. and
indeed at Runymede, the latter was the
stronger. If thes right of trial by q
jury of one's peers should have been
guaranteed the barons against the
king, certainly it should be still more
sacred when the controversy, as here
is between a citizen of humble means
more than eighty years old, an one
hand, md on tho other a powerful cor
poratiOn with its roads with-as We
know of both State and Federal gov
ernments-nearly $50, 900, 1000 of annual
receipts, more han SIG, 900, 900 of VIII CHI
&rein excess of it's operating expenses
with influence extending to every
Sphere of activity, State and Federal
If ever the right of trial by jury should
I've held sacred it is between citizens
of such disproportionate power."-kai
eigh Special to The Industrial News.