The news & observer. [volume] (Raleigh, N.C.) 1894-current, 1905-11-29

3. When a passenger is carried be-
yond the station to which he has paid
he is entitled to damage. and if this
be done wilfuly or recklessiy, he is
entitled also to punitive damages.
(Smith VS.. Il. r. N. G. 304 over
ruIedD
Samuel Hayes, appellant. vs.. Atlanta
and Charlotte Air Line Ry. Co.,
from MecklenburS New trial.
Action for personal injuries. Plain
tiff was a switchman on defendants
road and engaged in work between
Gastonia and Gaffney, points thirty
miles apart. He alleged that he was
required to ride upon the pilot of
road engine engaged in switching
work and that, owing to a defective
fiange on the front of the pilot, he
was thrown under the wheels and his
leg crushed. That it was customary
to use the flange for such purpose and
that he was ordered to do so by the
defendants servants. Plaintiff also al
legged that a road engine was not prop
err for the work of switching and was
dangerous.
Defendant introduced testimony
tending to show that. where a consid-
cradle amount of track was to be
covered, the use of a road engine was
preferable to a switching engine and
that there was a secure place provided
for plaintiff to stand behind the pilot.
There was other conflicting teSu-
fnony. after which the court minated
that it would charge the jury that there
was not sufficient evidence as to the
failure of the defendant to use a
switching engine and that it would
submit only the evidence as to the
defendants negligence i'm respect 20
the condition ofathe fiange, the contrib
utory negligence of the plaintiff and
the proXimate cause of the injury as
between these two alleged acts of neg
iligenee. &
In Difference to this elimination, the
plaintiff took a non-suit and appealed.
Held: l. Where IN the trial of an
action for damages for personal in
iurieS certain different acts or omlS-
sions are alleged as constituting negli-
gence and each act or omission so al
legged was not pleaded as a separate
and distinct cause of action but as
singly. or in connection with the 9TH
ers tending to establish the one cause
of action for negligence resulting in
the injury. an intima ton by the court
that it would withdraw a portion of
plaintiffs evidence before the case had
been submitted to the jury was not
equivalent to a ruling touching the
entire cause of action as in sustaining
n motion to non-suit or dismiss and
was premature and calculated to
handicap, embarrass and prejudice the
plaintiff in the presentation OF MS
case.
3. While plaintiffs right to sub
nit to non-suit should be limited only
TO such cases in which he is driven
to submit thereto involuntarily; and
while in order to avoid appeals based
upon trivial interlocutory decisions,
the rule is that the right thus to pro
coed applies ordinarily only to rulings
which strike at the root of the matter
in controversy and preclude recov-
erv by plaintiff the rule is to remand
the cause with directions to set aside
the non-suit, since to dismiss the APP
peal would be, by the nature of the
nOn-suit. to end the action.
James Reid, administrators. vs. Atlanta
and Charlotte Air Line Railway Co..
appellant. from Mecl<Ienbur9. AZ
| firmed.
| Plaintiffs intestate was killed while
attempting to cross the defendant S
track at a regularly established cross
| ing in the city of Charlotte. There
was evidence for the plaintiff tending
| to show that his interstate was killed
| by the backing of an engine onto the
crossing and that it was in the night
| time and there was no light on the
| train as it was moving and no f1agman
| or other person stationed to give
warning of it's approach. The usual
issues were submitted to the jury
| and the court charged in substance
| that if was the duty of the defendant
| to have sounded warning, to have kept
| a. light on the front of the train as it
was moving and to keep a man there
| as an adequate lookout to insure safe
| ty The court also charged the jury
| that if they should find that the en-
| CINE was backed without warning and
| that there was no light and no man on
| the front thereof as it was moving and
| that there was no one to give warning
of it's approach and that if these pre-
cautions had been taken the pialntlf
| intestate might have been warned and
her death avoided they should answer
| the first issue as to defendants neg
! ligence. yes and the second issue as
! to contributory negligence, no.
| Held: /. The charge as to the duty
of railroad company in shlttlflg
trains at night to have a man ana q
| light upon the front of the tram as
! it is moving is correct, the fact that
the crossing was also a portion of de-
PENDANTS shifting yard having no bear
| ing on the question of defendant
negligence.
2. One going upon a regular cross
| ing of railroad is no treSpasSer and
| the charge of the court setting forth
the omissions of the defendant which
would bring it within the rule of neGli-
gence did not have the effect of de-
iclaring that the defense of COntribu-