The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-11-24

freight train, which was blocking the
street and which, in closing. caught
nm between the cars causing his
death. There were exceptions for re-
fusal TO non-suit and to the Judge .
charge,
Held: /. On On instruction that 81;
is the duty of the defendants engin-
eer or fireman to ring the bell or
sound the whistle, or to give other
suitable and sufficient signals and
warnings of the approach of its tram,
While moving its train in it's yards,
and to use all proper and reasonable
efforts to avoid lnjurlng any party
who may be in its yards on legitimate
business. and if the jury find from the
greater weight OF the evidence thai
the evidence that the defendant failed
to give such signal and take such pre-
cautions and the said acts on the part
of the defendant resulted in the XIII
ing of the plaintiffs intestate, they
Should answer the first issue yes - is
no contradictory because the first
part of the instruction ringing or
sounding the Vn!stie' is IN the a!te..
native and in the second part "3.yin@
the signal and take such precautions. =
signal and precautiOn' being the
equivalent of the alternative signal
and proper and reasonable effort"
:. An instruction that THE use Of
the highways and streets by the travel
ling public belongs as mucn to the
public as the track does to the rail-
way company; and for the company
to block up the highway without aD-
solute necessity. or TO render its use
SO dangerous as TO deter the travelling
pubic, or to keep them in constant
| rear of life and limb, would be ii
material and unlawful interference
| With their rights: and if the jury find
from the greater weight of the cyl
dence that the defendant in this case
so blocked UP and INSTRUCTED a pub
| lie highway in the town of Lincolnton.
| this would be evidence of negligence,
and if such evidence caused the Kill
| ing of the plaintiffs intestate. then the
| is correct statement of the law.
3. A prayer for instruction as to
contributory negligence which stated
that. the defendant was not guilty Of
negligence if the intestate was guilty
of the conduct recited amounting to
contributory negligence, was properly
refused since the inquiry is as to
whose negligence constituted the proH-
innate cause of the injury. Even had
such PRAYER for instruction been i'm
properly refused. the error would have
been cured by the finding of the jury
in the affirmative as to the issue OF
contributory negligence.
lt. 4. ~ lisOn a. IOnIijan.- * Lew Co..
Ton .'LiiIe. ADDehsint. rom NECK en-
IurS. NO Error.
action 1or DrlCe of cotton. alleged
20 nave ueen SOfu Dy plalntIn in MAI On
I1u1 20 the deIenddnt minus ana TO pe
delivered IN AprII. May or June lC
IheIr option. II is also alleged taaL.
by agreement of the parties the Jay
- sltIDMent was postponed until July
-, ~ 4, at winch time the cotton was
shipped TO defendant VINO refused 20
IeNeiVe the same. mere was CORES
pondence IN which the defendant after
June 10, requested the piaintitt To
ue.ay snIpment for ~ days and au-
tnor1zed 90 bales of the cotton to DE
ooTu When the jury reaches Iz:ou or
| over On June 20 defendant wired
the plaInIitt sen. unIeSS order re-
voked, first 90 bales July reaches
eleven quarter" ON July % pralntin
inquired of defendant as to furtner
instructions, to which defendant re-
pied that the plaintins had not COM
pIled with their contract and it dId
not then need the cotton. The court
charged the jury that, as the contract
was in writing, 1t was the duty of the
court to construe it, the court then
inStructing the jury as TO its return
upon the issues if they beneved the
evidence.
Held: / The construction of a con-
tract rs matter of law and the mean
explicit. is a question for the court, the
whole office of the jury bring in sucn
case to determine the existence OF the
contract, their decision as to terms
being necessary only when they are
doubtful and uncertain upon instruc-
ttons given alphabetically to enable
them to ascertain the meanings and
intent of the parties.
2 Where. during the existence OF
a contract to purchase cotton by GER
tain stipulated times. the prospective
vendee. before the expiration Of the
time limited, ordered the vendor to
sell the cotton for it's account when
the price for July reached a certain
figure, such order was tantamount to
a direction to delay the shipment be-
ycnd the time originally agreed upon.
3. 1t is not material in what fornt
issues are submitted to the jury. pro-
Vlded they are germane to the sub
Ject of the controversy and each party
has a fair opportunity to present his
version of the farts and his view OF
the law. so that the case. as to ali
parties. can be tried on the merits.