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HomeMy WebLinkAboutRailroad Records 1898-1899Iredell County Railroad Records 1898-1903 C.R.054.925.5 1898 - 1899 North Carolina. «— In the Superior Court. Iredell County. , May Term 1898. John. N. Torrance. vs. BESS, Complaint. Souther Railroad Co. The plaintiff above named complains of | the defendant ,alleges and says: i First.. That at the time hereinafter men- tioned the defendant,a eevasanton duly inoorporated under the laws of the State of Virginia,was in the possession of,control ling and operating a certain railway ,running between the City | of Charlotte and the City of Statesville North Carolina, known as the"Atlantic Tennessee and Ohio Railroad,together with its _cars,tratts, locomotives and other appurtenances thereto belon- | ging,and that at the time hereinafter mentioned the plaintiff | was employed by the said defendant,the Southern Railrodd Co, | upon its train as brakeman. | Second.. That on the day of March | 1898, ,»the plaintiff,while in the Beshines of his duties,as brak | -eman upon the defendant cars,and in obediance to the command | lof his vice-principal,the conductor in charge of the defendants | | train,this plaintiff entered between the cars of the defendants | ) train,then-standing motionless upon the tract,for the purpose of uncoupling one of said cars,when without any fault,neglect lor carelessness on his part,but as plaintiff is informed and | belééwes, by reason of missfiting,illprovised and dangerous ap- | pliances and fixtures used by the defendant and attached to its | | cars,and by the reckless,careless and negligent movement of its | | train this plaintiff was so injured and crusaed between the de- | fendants cars ,that in order to save his life it became neces- | sary to amputate his arn. | Third.. That,as plaintiff is informed /and belé@fves >it was the duty of the defen Beth be Prenegs ge, place | r ; upon and attach to its cars safe and prope ces for the purpose of coupling and uncoupling its cars,and to cause said couplings and coupling appliance to be inspected and kept in a safe condition while in use by the defendants or its agents: But plaintiff, being advised avers that the defendant carelessly | wilfully and negligently failed to provice said safe and suit- |} able couplings and appliances,or if provided ,to keep the same in a safe and proper condition for use upon its trains,and that at the time of the injury complained of by the plaintiff,the co -~uplings and coupling devices atteched to the cars which plai- ntiff was commanded to ancouple, wisi s0 out of repair,missfited and in such condition that the plaintiff could not disengage ai « cars anti after the + iis, oureblbeateiculdangaet in motion, which fact he ‘immediately reported to the conductor in charge of said train,that said cars were continued to be used notwith- standing tae defective and dangerous conditiong of the couplings| thereto attached and the conductor commanded the plaintiff to again enter between the said cars ,stating that he would signal the train ahead,when plaintiff should uncouple said cars. That in attempting to obey the command,and without any fault,care- lessness or negligence on his part,but by reason of the defenda ~ants wilfulland negligent failure to provide safe and proper | couplings and coupling appliances,or to keep the said couplings and appliances in a safe and proper state of repair,as aforesa and by carelessly and negligently using said defective,miasfit and dangerous couplings and appliances as aforesaid,this plaig- tiff was crushed #HHARAAA between the defendants cars ,re- | sulting in the loss of his arm as aforesaid. Foruth.. That at the time of the injury | complained of,and after the plaintiff had entered between the | defendants cars at the command of his vice-principal,the con- | ductor,as aforesaid,and while expecting the train to be mooved foward,as he had been informed ib would be,enabling plaintiff 6 to uncouple said cars,the defendant train without fault or neg- ligenee on the part of the plaintiff,was suddently,carelessly, without notice and negligently driven backward upon the plaint | «iff catching his arm between the bumpers and so crushing and | mangling it that it was soon thereafters@gi# amputated by a Physician summonsed by the defenant. Fifth.. That by reason of said careless and negligent injury of the plaintiff,by the defendant,resul- ting in the loss of his arm ,tne glaintiff has been permanently disabled,and rendered incapable of providing a livelihood EOF, ub: ' himself and family,and caused to suffer great pain of body and pecuniary loos to his damage $1975.00. Wherefore he demands judgment against the defendant: | First .For the sum of one thousand nine hundred and seventy five $1975.00,dollars and interest on same from March 14th1898 til paid. Second.. For cost of this action to be taxed by the Clerk of this Court and suca other and furtheo releif as may be just and proper. 4 rie F a — ee » es - as - = n_ be ee _ © nw ie + a Few Sea oe \#- - : w™ £ +e . t . ‘ 7 SELSCLE eS eomecyu FS Bere cre "ererrus fUSP ve monte arise = FTPI ’ x $3 MTSaerT f sro Forrevec BUG FS cortiorc: COLRIINICS fyo br t SFIUOTEE one gerec-> ittWiose sae cota ; SSESCET Ace gNe cHriczore cougiprow\ o¢ fVS Corbrrye of eyr¢ SLT sug > CYL eG = acer MG i. 6 “ON °TUNSe PO: 3 sf Se ET ©8¢ Dorms scy- rs ete nent Joan . Torrance,the plaintiff in the above entitled action , after being duly sworn,deposes and says:Toat the matter of fact stated in the foregoing complaint are true of his own knowledge except those things therein stated on information and belief, and as to those ,ae believes it to be true. ee Sworn to and subscribed before me tahis tae/ day of then je RES ae May 1898. Me Wolfe mand nes “An the: Superior Court. Panes cove - oe SE, May Term 1898. Peak opae r+ idee . * “a mime * a ae Saye nv . . Bia a A Pe | ee . eee >. Southern sd a : Es : oe The defendant, the Southern Rai lway Company, answering the: con 4 Plaint in this cause says: | Ist. That the allegation contained in the first parapraphe’ . of . the complaint are true except that the name of the defendant is not 7 correctly stated, it being Southern Railway Company ‘instead of Southern © ‘Railroad Company. | } | | Onde. Theat as defendant: is informed and helievés the Gleza- tions ‘contained in the second , paragreph of the complaint ar e not true -and. are denied. Sed... Theat as defendant. is informed’ ard believes the allegations contained in the third paragraph of the complaint are not true and are denied. . | | 4th, That as defendant is informed end believes the allegé- ‘tions contained in the fourth paragraph of the complaint are not ture and are denied. 5th. That as defendant is informed and believes the allesa- tions contained in the fifth paragraph of the complaint are not true and are denied. | And for a further answer to said complaint defendant says : — nna Abs That the plaintiff was violating’ well known rulé of the defendant, company at the time he was injured by roing between the ‘cars to unc oup le the samé while an engine was attached to the trains” Tha - his injury Was due to such violation.of the rules and the plaintiff thereby: “contributed: by his own negligence in violating said rule to his injury: 2nd. That bpfare entering {nto the service of the. defendent, the plaints ff entered into & contract with:the defendant company, 8 0py:5 Par which, fe) ‘hereto abtaphed.: wherein it was. stipulated that. the o plaintite oS Gould ‘not ‘0 between the. cars ‘under any circumstances for. the: Purpose’ Of: * soupting or: uneaup ing or for any ‘other purpose when. an. engine. ae coach Oe: ‘puch: cars. or train, and. in considarabion of the employment, by the: ae~" << fondant company the plaintiff agredd to be Bound by said rule’ and te waive. 3 . all or any liability’ of: eat: company: for any violation of: said: rule or ey ) B: infraction therao?. | | e | : | Srd. The pleintitr knew thet under said sakes he was. not | tious to obey the. orders of any’ condvetor or any: ‘other officer: or ‘dcranes of the defendant requiring or omering him to attiompt to couple or. une oaph 5 ears. without a stick/ : 7 4th. . That well knowing the niles of the defendant. company in the partiouiars set out. in the contract, a copy of which is hereto atteched parked: A. the. pleintitr violsted said rules by: roing between the oars’ for’ SOc the purpose of uncoupling them. wher he knew that an engine was attached ~~ “to same, and thereby contributed by his own négligence to the injury re-. esived. | | 5 Winrerors. haxicee Pilly anewared.the defentunt--Qiaieids. that ie pleintitt take riothing by his action and thatthe defendant company gO: without day and recover ite costs, , LAA Moni ‘ Can Bose Attorneys for Defendant . North Carolina, ay ~ Wake Courty. A. B. Andrews being duly ‘sworn says that. he is an officer oF te - defendant corporation, to-wit the Fiwst Vice President thereof; that he~ . has read the foregoing answer and that the faote set forth. therein as oe | his om” knowledge ars true and those stated therein on information and 5 ~ tt . belief he believes to be true. : 52 “Sworn to and subseribed before me this S</. day of Mey. 1898.22 7 a etait ' FORM 7G. M. “RICHMOND AND DANVILLE RAILROAD COMPANY, . ‘Semvel B F. W. HUIDEKOPER ann REUBEN FOSTER, Receivers. OK HSE, 1 Mise . “fully understaiid that the Rules of the Gaetmomt&and | Receivers dceluively prohibit Brakemen from Coupling or Uncoupling Oars except ick, and that Brakemen or others must not go between Cars, under any circumstances, for the purpose of Ooup- ae or Uncoupling, or for Adjustipg Pins, &c., when an Engine is attached to such Cars or Train; and, in consideration — of pjoyed. by | Com by aghes to be bound aad rye, and waive all or any liability of said Com- pet Por ith Heces ; ee er cape Oe ‘of atidbediehce sateen teat I farther Petia that many foreign cars, which this line must necessarily handle and tranaport, have no Jumpers attached to ‘them, and that thereby the danger of going between the cars to Couple or Uncouple, or Adjust Pins, is greatly increased. I farther understand that Brakemen are not required, compelled, or expected, to go between cars, when an engine is attached to such cars or train, to Couple or Uncouple Cars or Adjust Pins, or for any other purpose. I further plainly and explicitly understand, and now take notice, as part of this contract and regulation, that no . a of Rai train, freight or passenger, or any Engineer, or Fireman or any other agent of the Aretmremi-ardt—— allay Gem paity. Reteivers, have the right to waive, or dispense with, or suspend or in any way alter nr ae iBorithere any of the provisions; cOnditions, contracts, stipulations or regulations contained in this paper, writing. T am also hereby informed, and take notice of the fact and fully understand, thet no Conductor of any train, passenger or freight, or any Engineer or Fireman, or any other Agent in and about said trains, have the authority to dischagge, dismiss or otherwise punish or injure me for adhering strictly to the conditions, ‘stipulations, and regulations contained in this paper, or for failing to obey any order to violate said conditions, stipulations, and regulations, and I solemnly agree not to violate said conditions, stipulations, and regulations contained in this paper writing. ee ET me emma me - es cae Neti, A setrett et iR davalenatil hu - o Pome ¥ Oe | I hereby certify, that before signed the above, as appears by “his mark,” I read the same over to him and carefully explained it. NOTE.—Before any one is allowed to enter the service of this Compafhy as Brakeman, Flagman, Switchman, or Fireman, he must sign one of these forms; and, previous to his signing, he must insert, IN HIS OWN HANDWRITING, above his signature, the words: “‘I HAVB READ THB ABOVE CAREFULLY AND PULLY UNDERSTAND IT.” In cases where the would-be employé Cannot read or write, his signature must be made with his mark, and the witness must fill ,up the certifiente at the bottom, inserting the employé’s name in the blank space left for that purpose, and must sign his (the witness’) name to the certificate—this cqneters of the witness to be in ADDITION to his signature as witness to the employt’s | mark. asait ; ioe anewer as. follows bs: a“ "The defendant asks leave of the Court to amend its 4 <a? | "And for a further answer to gaia complaint defendant says : | re Be That the cars between which plaintiff:was.injured ‘|wore a jae belonging to the defendant known and designated as. |"Southern Car No. 25,921" and a car belonging is the Norfolk & lwestern Railroad Company, a corporation of the State of Virgin- lia; known as "Norfolk “& Western Car No. 169". That the said Southern car was equinped with automatic couplers and did not Ineed a link and pin to couple it to another ear with like equip jment, nor would there have been any necessity for plaintiff to | B0 between said Southern car and one like equipped for any pur- }pose of coupling or uncoupling. But thé said Norfolk & West- lara car Wo. 169 was 0 equipped with frtomatic counlars. ana Lt couple it to any other car it was necessary to use a link jand pin. That said Norfolk & Westérn car No. 169 was at the | time plaintiff recetved his injury engaged in interstate conm- ymerce. That said car Nam weg loaded with guano had been, | shortiy before plaintiff's accident tendered to defendant at lsurkesville, Virginia by said Norfolk & Western Railroad Com- | pany to be hauled to MopPesville; N. C. That defendant had hauled the same to Mooresville and at the time.of plaintiff's injury defendant was returning said car to said N. & W. Re. Re J iGo. in Virginia, and that as defefidant is informed and believed. 4t was bound to accept said car when tendered at Burkesville Fa said N.-& W. R. R. Co. and to haul it to its destination and return the same". John N. Torrence, i | vs Southern Railway Company. - $pecial instructions prayed for by the “efendant. | lst. Plaintiff admits that he signed the contract sas: Serna nentenmeemneentmpen tare: meme “exhibit "A", and that he read it-over before signing it, and knew that the rules of the company forbade his going between the cars to couple or uncouple when an engine was attached to -the train. He admits also that he was injured while between the cars for the purpose of uncoupling, knowing at the time an engine was attached to the train. This being so the answer to the first issue should be "No" and to the second issue "Yes", ; 2nd. If the jury believe that the egnductor of the train knew that plaintiff was going between the cars to uncouple them while an engine was attached to the train this did not excuse plaintift Amy violating a known rule of the defendant company. If plaintiff saw that the cars could not be uncouple) with a stick it was his right and his duty to demand that the engine be detached from the train until he could go between the cars and uncouple them with his hand, and if he undertook to uncoyple them, without cemanding that the engine be first detached from the train the answer to the first issue shomld be "nO" and to the second issue "yes". 3rd. If the jury believe that it is customary for an engineer of a freight train, when about to start his train, Or pull it forward, to first push it back, in order to get the advantage of the slack, then plaintiff, an experienced brakesman ought to have anticipated such backward movement and if his injury was due to his failure to anticipate such back- ward movement the answer to the first issue should be "no* and to the second issue "yes". 4th. If the jury believe that it is customary for engineers of freight trains, when about to start the train (2) forward, to first back the engine to get the advantage of the slack there was no negligence on the part of the engineer in this et ee ee on en OR Eres we Puna first back his train gum to page slac i bie answer to oe first xt be "HO". Sth:——The~conauctor or the train had no right to waive or abrogate @ rule of the company, well known to the plaintiff, and if plaintiff went between the cars to uncouple then, while the’ éneine was attached to the train, in obedience td a command of. the conductor, this would not excuse him, and the answer to the first issue should be "no" and to the second issue "yes". } By co Chl Px Mes, John N. Torrence, vs UD. 3." 8 GHAR @ 3. Southern Railway Company. Gentlemen of the Jury : The following issues are submitted to you in this case. First, however, I will state that this is an action brought by the plaintiff to recover damages out of the défendant for alléged negligence, by reason whereof he says he has lost his arm, and he is claiming damages out of the defendant. The defendant in his argument admits that under the laws of North Carolina upon this evidence that they would be liable and that you should answer the first issue yes and the second issue no. Now the issues submitted to you are these : lst. Was the plaintiff injured by the negligence of the defendant as alleged ? 2nd. Did the plaintiff by his nerligence contribute to his injury ? ard. What damages has the plaintiff sustained by reason of said injury ? The defendant admitting that the third issue is the one that you should especially direct your attention to. That is to say, and I charge you, that, notwithstanding, the defen- dant had signed an agreement as read over to you, the one that was read over to you by the couf&isel and offered in evidence, still if the conductor of the defendant ordered him to do an act contrary to that agreed to, that is if he had agreed in subetance not to go between the cars to couple or uncouple, still if the conductor ordered him to go between the cars and he obeyed the orders and he was thereby injured by reason of the company's not having the improved couplers, such as the Jamney coupler so as to avoid the necessity of his going be-™ tween the cars and he was injured thereby he would be entitled ¢ (2) to recover. In other words a rule of the railroad company, agreed to by the plaintiff, may be waived or abrogated for the company by the conductor making an order contrary to such rule when it is the duty of the plaintiff to obey such order. Now if from the evidence in this case you find the defendant failed to provide for its cars used by it at the time } of the. accident what is known as the Janney coupler, or some Other improved coupler, xkxwanrkadx which would obviate the nec- essity of the plaintiff going between the cars to couple or un- couple, then such omission or failure on the part of the de- fendant is negligence, and you should answer the first issue yes. Even if you find that the plaintiff contributed to his injury at the time nevertheless if you find that the de- fendant had failed to provide these improved couplers as above stated, or as just stated to you, you will answer the second issue no. Now after you have answered the first and second issues, if you find the first yes and the second no, then you come to the issue as to damages. The plaintiff is entitled to recover as damages one compensation for all injuries past and prospective in conse- quence of the defendants wrongful and negligent act. These damages embrace the indemnity for actual expenses and loss of time, loss from inability to perform the ordinary labor the plaintiff was able to perform to earn money by reason of the injuries received; and he is entitled to receive reasonable compensation for loss of both bodily and mental powers, if you find that he has suffered any loss of bodily or mental powers. I do not understand that there was any proof of any mental power so I should say from any loss.of bodily power, or actual suffering both of body and mind, which are the immediate con- sequences of the injury. Now you are not to undertake to give him the equivalent of the loss of his arm. You simply (3) say what is a reasonable compensation. You are not to con- sider what you would take for the loss of your arm, you are not to speculate in that way about it, but just say what is a reasonable compensation for the loss of the arm - what is a reasonable compensation. You are not to consider anything that has been said about the Courts - about the desire to get into other Courts - : or anything of that kind. That has nothing to do with the case. It is before you as reasonable men and in assessing damages you simply consider the rule that I have laid down to you and act as reasonable men. You don't seek to punish the railread - you have no right to do that - you just give a reasonable compensation under the rvle which I have given you. You can take the issues and retire. John N. Torrence, vs | Southern Railway Company. Instructions prayed for. by the plaintiff. co: * lst* A rule of the railroad company agreed to by [the’ plaintirs may be waived or abrogated for the company -by pbhe conductor making an order contary to’ such rule, when it is ithe duty of the plaintiff to obey such order. | Mason vs Railroad 111-482, 2nd. If you believe the evidence in this case and find that the defendant failed to pro¥Vide for its cars used by coupler, or some other improved coupler, which would obviate th | jit at the time of the accident, what is known as the Janney | necessity of the. plaintiff going between the cars to couple or } Juncouple them, such omission or failure on the part of the de- ifendant is negligence and you will answer the first issue Yes. | 3rd. And even if you find that the plaintiff con- | triputed to his injury at the time, nevertheless if you find ithat the defendant had failed to provide self couplers as abova stated, such neglect by defendant is a continuing negligence jand is the proximate cause of the injury, and yeu will answer Ithe (first issue YES and the) second issue NO. Ath. You are instructed that the plaintiff.is en- titled to recover as damages one compensation for all injuries lpast and prospective in consequence of the defendants wrongful Or negligent acts. These damages are understood to embrace the indemnity for actual expenses and loss of time, or loss from inability to perform the ordinary labor the plaintiff was able to perform, to earn money by reason of the injuries peediveds and he is entitled to have reasonable satisfaction for loss of both bodily and mental powers, or for actual suffering, both ye ~ 2 ey e | of body and mind, which are the immediate cansequences of the dnjury. Wallace vs Railroad 104-442, a L t kong Mller fw kif. oie 5 andre oH naresit ‘ fa a x * es MS, ‘ \ $ ‘ s ar i . che t Ceo > i . i i waa s ™ th o ‘ Nerth, Carotina. In the Superior Court - Treaent county Youn W Torrence id eV. te Application to sue aS & pauper Southern Railroad Co. John N Torrence being sworn savs: That he is unadie to give surity or make the derosit reonired bv law to enable hip to prosecute the above action against the defendant Southern Rail Road and therefore rrays that he may be allowed to sue in said Action as A TNAUTeT. Swope to before me this Phan de Ce // aay of ONMuufst Ay. Bis K " the Cler* of she Superior Court of Iredetl County; This is to certify that I have exanined the cas of the plaintiff in the above entitied agtion and baefieve that h lhas-a Food: and eee cause of actién;:in fact and ‘Law.: John N Torrence _¥s, Order granting Leave Lo. sue 4s a paper Soenthern. Ratiroad Co. , In the above entitied action unon the certif- dcate and affidavit above set forth it is ordered: That the above named John V Torrence be allowed to prosec- nte @Aid suit as a ranper. That no officer shall reonrire of hin anv fee and SnAii re- cover no cost.: This 1 Gav of Aprji 1896 a g VS ba Za By i Bea ee ht Sf Fe Creat Ho negeeeZt crt Brat ~K A PisrrceriKfe ‘ "ecu Ce ae eee | A. ass pene to oii SQ ok SSAA A oi Bred YA aswnok Qh ; e WINS “eee Ws Ana noha aa tenant aennahinamatineeeniie = North Carolina, In the Superior Court, Iredell County. August Term 1898. John N. Torrence, vs Southern Railway Company. This is a civil action tried before Allen Judge d a jury at the above term. The pleadings are as set out in the record. When the case was called the defendant moved the Court for leave to amend its answer as follows : "And for a further answer to said complaint.de- fendant says : That the cars between which plaintiff was injured were a car belonging to the defendant, known and designated as "Southern Car No. 25,921", and a car belonging to the Nor- folk & Western Railroad Company, a corporation of the State of Virginia, known as "Norfolk & Western Car No. 169". That the said Southern car was equipped with automatic couplers and did not need a link and pin to couple it to another car with like equipment, nor would there have been any necessity for plaintiff to go between said Southern car and one like equipped for any purpose of coupling or uncoupling. But the said Norfolk & Western car No. 169 was not equipped with automatic couplers, and to couple it to any other car 4% was necessary to use a link and pin. That said Norfolk & Western car No. 169 was at the time plaintiff received his injury en- gaged in interstate commerce. That said car loaded with pyar, Nad been; shortly before pleintttt’ s-acctdent;-tendered— to defendant at Burkesville, Virginia, by said Norfolk & West- ern Railroad Company to be hauled to Mooresville, N. C. That defendant had hauled the same to Mooresville, and, at the time of plaintiff's injury, defendant was returning said car to said Ne. & W. Re Re Co. in Virginia, and that as defendant is informed and believes it was bound to accept said car when (2) endered at Burkesville by said N. & W. R. R. Co. and to haul it to its destination and return the same". The Court stated that he would hear the evidence d then determine whether or not he would allow the amendment. The evidence was as follows : John N. Torrence, plaintiff, in his own behalf, testified: I was injured on the 14th of last March at the Hepot in Statesville. I was working under Capt. Rowland con- Huctor of a mixed train of the Southern Railway Company on the Atlantic, Tennessee & Ohio Railroad. I was employed as a brakesman. Capt. Rowland employed me himself. I was hurt between 8 and 9 o'clock at night. We were making up a train which was to leave here next morning. It was Capt. Rowland's abit to tell me in making up trains what cars to get out, and if he wanted to throw cars in any of the side tracks he would sive me the numbers or tell me which car and tell me to cut it pbff at such and such a place. The time I got hurt Capt. Row- land pointed ou the place and told me to go in there and cut bff right here, pointing to the cars. When the train came to stand still I went in to cut off the cars and found both pins fastened in the bumpers where he told me to cut off. One was an automatic coupler and the other an old style, and the pin in the automatic coupler Was crooked and the springs was either eak or broken in the old style bumper, and it was way up under he sill of the car so I could not pull it out. ® tried the in in the automatic and it was crooked and I could not pull At out and could not pull the pin out in the old style either end I came ort from between the cars.and told.him he.would. have o sign them ahead the least bit so I could uncouple. What I meant was that he was to signal the engineer to move forward BO as to ease up on the pins. Capt. Rowland told me all right go ahead and cut the cars off and i went back. I didn't see im signal the engineer, it was on a curve and I could not ee him, but I went in there in gbedience to his orders to try (3) to get the pins out and separate the cars. After I got in there I was standing waiting for the train to go forward, but instead of going forward it came backwards. All the. slack was taken up except just enough to catch my arm - if the slack had not been taken up I could have heard the cars hitting together in time to get out; as I did not hear them it shoved me back about 15 feet. My left arm was caught between the dead blocks but I took out the pin with my right hand. When I came out I asked Capt. Rowland why he didn't sign them ahead like I asked him, with an oath to it, and he said he did, and told me to go to the depot and telephone for Dr. Anderson which was done. One of the cars Was a self coupler and the other was an Old style which required a link and pin. There was no way to get the pin out without moving the car forward a little. If the pins had been in good condition - straight - they could have been removed without pulling the car forward. I did not know anything about the defect in the pins or in the bumpers beroré I went between the cars under Mr. Rowland's orders. When I discovered the defect I reported it to him, and asked him to move the car up a little, which he said he would do, then he ordered me to go back there to remove the pin. This was right close to the depot at Statesville. I suffered a great deal between the time my arm was crushed and the time it was amputated. I went to the depot and telephoned for the surgeon of the railroad company, Dr. Anderson, and not being able to find him I got into a carriage and went up town and got Dr. Long to look after me, There was some talk about amputeting my arm again on account of some difficulty .about. its healing up properly. It hurts me yet during wet weather. I weighed 165 pounds before I was hurt = weight 140 pounds now. I was making, when I was hurt on the railroad, $28.50 per month. I was a plasterer by trade. I will be 26 years old next Christmas. Was hurt on the 14th of March of this yoar. There were about 28 cars in the train when I went in to cut (4) off. Plaintiff admits that he signed the contract marked Exhibit A in the answer. I knew the rules of the company in regard to coupling. Bumpers and draw heads are the same thing. My arm was caught between the dead blocks. The cars which ty was sent to uncouple could not have been uncoupled with a stick. It was necessary to go between them and use your hand. A stick was furnished me but it could not be successfully used in uncoupling cars where the pins had been bent as in this case Dr. He Fe Long, witness for plaintiff, testified to the ampute- tion of plaintiff's arm. That on £k account of the great losa of blood there was trouble about his arm healing up and it was thought at one time that it would be necessary to re-amputate it, but this was not done. Plaintiff then offered section 1352 of the code and rested. Defendant offered W. T. Rowland who swore that he was the conductor of the train on which Torrence was hurt. Didn'6 see him at the time because there was a curve in the road which cut off his view. When Torrence went. in to uncouple the cars he said all right, which, in railroady parlance, means g0 ahead, and I signalled the engineer to go ahead and I suppose he tried to go ahead, am sure he did, and could not and he took the skack of the train. What I mean is that when an en- gineer cannot pull straight ahead he pushes the cars back against each other BSEAEEE packs them together and gets advan- tage of the 6 or 7 inches space between each car in starting. An engineer never gives any signal when he intends to take the slack» I-witnessed the sicnature of Torrence to Exhibit A, 2 and also to the contract in the same words and figures dated Nov. 4th 1897. Of the two cars between which Torrence was hurt one of them was a Southern car which was equipped with automatic couplers, the other was a N. & W. car which had the old style couplers on it. The old style car was marked N. & W. 169. The other was a Southern car fully equipped. I (5) looked at these cars as soon as the accident occured and re- ported in my repo’t which I show here that they were as I say, one of them a home car fully equipped with automatic couplers and the other a Norfolk & Western with the old style link and pin. Defendant then offered the contract WHLEK attached to the answer marked Exhibit A. Plaintiff objects. Objection over-ruled and plaintiff excepted. Defendant then offered in evidence a contract in all respects similiar to contract Exhibit A except that this one is dated Nov. 4th 1897, and to this contract the plaintiff objects. Objection over-ruled and plaintiff cxcepted. He He Cochrane, witness for defendant, testified : I am car inspoctor in Charlotte. Exa mined the two cars between which Torrence was hurt. One of them was a Norfolk & Western car No. 169 equipped with a link’ and pin coupler, old style, the other car was a Southern car equipped with automatic coupler. The Southern car was Noe 25,921. When you attempt to couple a car equipped with an automatic coupler to an old style coupler it is necessary to use a link and pin. A. M. Frontis, witness for defendant, testified : I am employed at Mooresville, N. C. as Clerk to Mr. Hawthorne agent there. N. & W. car No. 169 was delivered to the Southern Railway Co. at Burkesville, Va. loaded with guano for Mooresville. It came to Mooresville and was unload- ed and at the time of the accident to Torrence it was at States ville to be sent back to the Norfolk & Westorm Railroad. De Ce Pearson, Jr. witness for defendant, testified : N. & W. car Noe 169 was received at Statesville on the night of the 9th of March and was held here in the side track until it was sent to Charlotte for inspection, and arter Second Bxcep- tion. (6) inspection to be returned to the Norfolk & Western. He He Cochrane, for defendant, re-called : , I Wave been employed in the yard at Charlotte for some time, and know that the employes uncouple cars with sticks. Have seen them do it often. You can't uncouple with a stick however where the pin is bent. Defendant here closed. Earnest Steele, witness for plaintiff, tostified : I was assisting to make up this train. I was in a short distance of Capt. Rowland when he ordered Torrence to go between the cars to uncouple and heard Torrence tell him that he could not uncouple until the cars were pulled forward. Torrence then went back and Rowland sipned the engineer ahead. Instead of going ahead he slacked back and caught John's arm between the bumpers. At the close of the evidence defendant renewed its motion to be allowed to amend the answer. Motion refused and defendant excepted. The Court then struck out all the avidence relating to the ownership of the two cars between which plaintiff was hurt and the business in which the Norfolk & Western car No. 169 was engaged at the time of the injury, and the defendant excepted. The Court charged the jury as follows: The following issues are submitted to you in this case. First, however, I will state that this is an action brought by the plaintiff to recover damages out of the defend- ant for alleged negligence, by reason whereof he says he has lost his arm, and he is claiming damages out of the defendant. The defendant in his argument admits that under the laws of North Carolina, upon this evidence, that they would be liable, and that you should answer thé first issue yes and Third Ex- ception. C7}: the second issue no. Now the issues submitted to you are these lste Was the plaintiff injured by the negligence of the defendant as alleged ? 2nd. Did the plaintiff by his negligence contri-,. bute to his injury ? Srd. What damages has the plaintiff sustained by reason of said injury ? . The defendant admitting that the third issue is the one that you should especially direct your attention to. That is to say, and I charge you, that, (a) notwithstanding the defendant had signed an agreement as read over to.you, the one that was read over to you by the counsel and offered in evi- dence, still if the conductor of the defendant ordered him to do an act contrary to that agreed to, that is if he had agreed in substance not to go between the cars to couple or uncouple, still if the conductor ordered him to go between the cars and he-obeyed the orders and was thereby injured by reason of the company's not having the imporved couplers, such as the Jan- ney coupler gx® so as to avoid the necessity of his going be- tween the cars and he was injured thereby he would be entitled to recover. In other words a rule of the railroad company, agreed to by the plaintiff, may be waived or abrogated for the company by the conductor making an order contrary to such rule when it is the duty of the plaintiff to obey such order.(b). And to so much of said charge as is between the let- ters (a) and (b) the defendant excepted and assigns the same for error, (b) Now if from the evidence in this case you find the defendant failed to provide for its cars used by it at the time of the accident what is known as.the Janney coupler, or some other improved coupler, which would obviate the nec- essity of the plaintiff going between the cars to couple or un- couple, then such omission or failure on the part of the de- ception. Fifth Excep- tion. (8) fendant is negligence, and you should answer the first issue yes. (c) And to so much of said charge as is between the let- ters (b) and (c) the defendant excepted and assigns the same for error. (c) Even if you find that the plaintiff contribut- ed to his injury at the time, nevertheless if you find that the defendant had failed to provide these improved couplérs as above stated, or as just stated to you, you will answer the second issue no. (d) And to so much of said charge as is between the let- ters (c) and (d) the defendant oxcepted, and assigns the same for error. Now after you have answered the first and second issues, if you find the first yes and the second no, then you come to the issue as to damages. The plaintiff is entitled to recover as damages one compensation.for.all injuries past and prospective in consec- quence of the defendant's wrongful and negligent act. These damages embrace the indemnity for actual expenses and loss of time, loss from inability to perform the ordinary labor, the plaintiff was able to perform to earn money, by reason of the injuries received; and he is entitled to receive reasonable compensation for loss of both bodily and mental powers, if you find that he has suffered any loss of bodily or mental powers. I do not understand that there was any proof of any mental power so I should say from any loss of bodily power, or actual suffering both of body and mind, which are the immediate con- sequences of the injury. Now you are not to undertake to give him the equivalent of the loss of his arn. You simply say what is a@ reasonable compensation. You are not to con- sider what you would take for the loss of your arm, you are not to speculate in that way about it, but just say what is a reasonable compensation for the loss of the arf - what is a « (9) reasonable compensation. You are not to consider anything that has been said about the Courts - about the desire to get into other Courts - or anything of that kind. That has nothing to do with the case. It is before you as reasonable men and in assessing damages you simply consider the rule that I have laid down to you and act as reasonable men. . You don't seek to punish the railroad =~ you have no right to do that - you just give e reasonable compensation under the rule which I have given you. You can take these issues and retire. The jury found the first issue yes and the second issue no and assessed the damages at $1,250. and.there was a judgment accordingly as set out in the record proper. There was a motion for a new trial. Motion refused and defendant excepted. Defendant appealed in open Court. Notice waived. Bond in the sum of $50. adjudged sufficient. Assignments of Jrrorge lst. Befendant assigms for error the refusal of the Court to allow thé amendment to the answer, which is here- inbefore set out, and Which is the subjeet of its first ox- ception. 2nd. Phat the @ourt struck out all the evidences relating to the ownership @f the Norfolk & Western car and the business in which it was engage@ at the time of the accident, and which is the subject of its second exception. Srd, The cha@pge of the Court as is set out between letters (a) and (>) and the subject of its third exception. 4th. The charge of the Court as is set out between the letters b and c and the subject of its fourth exception. 5th. The charge of the'Court as is set ovt between letters c and d and the subject of its fifth exceptions 6th. The refusal of the Coyrt to grant a new trial, subject of its sixth exception. gf 0; Sonne hae P- $m ) ae cela. se bed a soe arcs 1679) | EF L fore, . ede s fas a ck raped le é eel hk Ke : OW oaks ote C3 U5 feos fay 0 pet 4 tS wt he endl Tho m_zhe 23" “Clu 4° Me teuhe /P9 ey apna 6 of (at hay lqhinetly W.C, a taken m (douk er 3 / aateagee oe th Chg" ow 4 \) SS od | SS ee eee | ee ee ' 5 a / UJ . ee Qeee i ruly Oak. ag? ae pote i, Ras Oke, MMe Orin ha poset g os ro pe hic wi on ft 9h of pit Ise ch ce Cot iia a eeueny Ga eee Kah che pk Heemesey, it ee | syd off om auth <p gaa +B 7 # fl ee erercly ; ii Omae gu flint feet, ak mecssiAe His Tipe Eet LALA - wae l-hir bul. his onévithe hae (2 ad Aad Aaah ics rk ke ff pet fi Ae 2s heheh, Uf / tL, =f iL, & Mirra toe yk pad wah is al fa da Atv (peremamand: @ a hy proern pd meg tigeuk aks Worth (Carolina, ) ) Iredell county. ) Morris J. Riekert, Plaintiff, vs. ANSWER. The Southern Railway Company, Defendant. fre defendant, answering the complaint in this cause, says: That the allegations contained in the first paragraph thereof are trus. That so mech of the second paragraph as alleges that, “on the 28rd day of December, 1806, the plaintiff desired to go from Salisbury to steiesvilie, true. All the other allegations in said paragraph contained are not true and are denied. That, as defendant is informed and believes, the alie- gations contained in the third paragraph are not true, and are denied. That, as defendant is informed and believes, the al- legations contained in the fourth paregreph are not true and are denied. And, for a further answer and defense to said action, the defendant saya: 1. ‘That, as it is informed and believes, the plaint- iff was a treapaseer upon its train from Salisbury to States, ville on the Gate nased in the complaint, attempting to steal a ride thereon. 2, That the plaintiff contributed to his injury, bg his own recklessness, in jumping from the moving train, knowing the same to be moving, without ay invitation or order so to d= by any person authorised to give suck invi- tation or to make suck order. (8. That the plaintiff, as defendant is informed and believes, being 4 tramp, and attempting to "beat" his way from. Salisbury to Statesville, got upon defendant's train with out any ticket and without any intention of becoming a passenger thereon, but solely with the intention of stealing a ride; that being on said train under said circumstances, the plaintiff jumped from defendant's train while the same was’in motion, when he knew or could have seen that it was in motion, to avoid being canght up with as such trespasser, and thereby contributed to the injury he received. . Wrerefore, having fully answered, defendamt demands that it be hence diamissed with its costs. OUunn~Aid on m= Attorneys for Defendant. North Carolina, ) ) Wake County. ) A. B, Andrews, being @uly sworn, says that he is an officer of the defendant corporation, to wit, the First President thereof; that he has read the foregoing answer, and that the facts set forth therein as of his own knowledge are true, and those stated on information and belief, he be- hieves to be true. Sworn to and subscribed before . er this 7“ day & July, 1607, P21 Briiaaixe eee ht. ain 7 " fe foie Hae rs 4 “a . eet CHa Gr Viner HeaterK Gol deerok +> . AP BOUAPP ae? Convery peoulere amd “Sta tint te. “1g Ailey € / / | Tp ‘dal paced Cae prouwily Maks pad SS eee fo ow G ge The A, 13 ‘ae datrreeco Ae Leelee 3. _— ene Hal feck ial lp ane AP at naa i fete Beeb Onkerr rer on alagilcig forme a Bec, ces lacs Utay ty Ht Gua dt ode ce of oclug: nn lee Dial omre agatack a tefe exe jo Y¥ : Miceahken. » (LE as AG. 4047 * ” rye av . a ; “angel ‘ ’ . is st Pres the’ # fry Cada ve: the ‘esidehen the. answe? ‘to the: isi at oe ae 2 Route. oe "Bnd =n, Bhs: burden: of prouisre: ‘the firiuth or ne “alingat ints “Of regal te ae es aie « opimpla sist 48. upon the: piaintit® and unless’ he has shwn by a prepon=" . “deranoe of. the evidence: that he was injuree by. the negligence. of the “defendant ‘tne ata te’ +O; the first. Assue, should a No. ; > OFa. - Ef the Swry paliave that PRMBTIES: was. stealing a eg and... Sompd of? “the train without the khowledne or tne condugtor the =a answer to the ripet Assue shonid he: Nou “eyes =A, , . vy wen A Moree ~~ tk 4th. BF. the. Suny believe that piaigvsr? paid-his ferd as ~~ Ableced but Jumped oft the tratn while it was in motion eiknans any {iui tasion of ‘aimed of the-conductor the answer to ‘the first issue . - stent: me Kowa Pe @5 5 oe tax 2 Sth, 24? the.condricfor mad? motions Which-ware intanded for o _eigoals towne qngtneer and not for: the plaintirr- ene the plaintirr mts- Ss Thess mot fons for a sipnai to himself to pet ort and got off ih con ss Saauandte and; wes insured the answer tothe first issue anole be Hos. Shis x so whadhes- he pad paid fare or not... . et Yr tA ma : ; 6th si tie prestrpeion is that plaintiff was -atquainted with ordinary ine fdents of ra firoad trave]; that. he. knew -when he pate. ” > tee that fhe train wes Hound to stop at-his statfon tong enough for S Bye go ort. Univss thererore- he has satisfied. the jury that ne ate: of know the teake Olight to ‘stop for-him, his petting off when he tid, mo Wee Ket) a Zoi inexcusable and. the answer to the Tirs}. issue should be Mo. <3 te = ee . Tee Teas Oniess the “jury believe thar the signals were made by Ba She conductor as described by plaint irr, ‘and thet, being »* made they intone ae a sigma ‘$o plasntise Wo cer oft, {he answer 6d the : ert ek be OO 2 = eee Re aoe pee —s a . * em oe Sh Poe ee mp e - A ty em ; is ook oe “ ellie it a “ph 2 Cright 10: expect aie to: stop. the tyain ate for Rich. 4° pert of. the: car aria eenin® “but oy wane nh a Pp. : k ov She shia aoane or invitation, gvowke Sunaty £5 in gett Sag; “ott while: the train wes in moe fon. oh mere s{gnal, withon wees, whiter nt i chain haan issercted TOF fie eng ineer was. not sufficient s ce dint noe ‘Justiry ‘the pikintite fn. getting off, and: the ‘answer tos the first “isaue should ‘pe No; - fern | ae ke te fio 96h. There is no eviderice that “the stab wars: tmpertact, 4 “3 therefore, the Jury, Debisye that. the train -was running: 810¥ anoush ta enable plaintiff to- alipnt with sefety, if he had not ¢aught,.nis foot =the stép, the answer to thé first issue shold. be Mo. eee ere ze oe “ee ein Sly Rhee ore aware rote ne Af tne = Pe ile ~~ Ew a helt ee oh ’ peda eh Ae Game st ag haw wsaons arena Se Ye ‘ ~ et me | need” » “PAN a : we Per > Y esate Satsisoene nace Pav pga Mannan Bh wag: Oe tele NR Sp ge PO Sor Tiga nt A, lan eaves 5 PP tO FEES Bene a : ot nae PRAT ane ss gay “£txt *, hm Pete a sity Ree “to cee SSL STAM mg Ps ome . ‘ a ee ns ‘ ‘ } 4 . a : . 5 > . Erte? 4 ‘ ‘i “i ot ie ct, RRERLRW rae ge Bei erm ak eo i cS : ee ‘ 7 ; > oom we de t ee te : e ° 2 >» . * : : 4s - : ; . ; Ta sti lh Ip ~ Bi. ee CES oe linet eine > ‘ > . Sa fst pia ae 2 av Feent ego ead 3 Ziad a eigen 2 ~~ nae a eat amen bat: “i 3 TpLy. 3 toe at ene ; sy Tike. SEIT O ee BO CB masgul Te Bate af the defoen- ins Drees plete ar tees thet on the-23re any of Decenber 896 he. oe + wee a pagsniger oh the tefendant ts. frefcht tre tn. tram: seeichary £6 States- =" uh tte., “That Bhs deferidant neplirentiz failed bon atop its train-at a “Bhat eaville to al For him to lLigkt. therefrom, but Lgsteat the conductor directed Adin $6 fetorr of Bais train at thé first svitoh wilde” it abe reg at the rate of B:6r ‘& mt2@s- an athe «tie Ee directed to eo: so. hy. the cond: aver he fot orf and Was injured. Ths de fenttant contends that} the plaintiff was-not a paasenpery %y Sthetne Was d- thappneser: that he was. stdalffis-9. ride, -sacithat the ade- geo nee no knowléedee or information Skat” t he -fletht fff was. on the ee: P17. That the platntitr funmped from the: train while: {t-Was: tn moticn “sc 8 Anew. ke ws Bey) omy ; ; without any inviftatton-or tommant-of-the conductor and wis ‘ite Ses nree bY hie owns weglicance ant not. by-th® nap lipence of tha” defendant, . Pho Surtan is tpon the plaints irr to shaw-by:.c- prepondetance 0° proof no* “fly that he -wes injured bet thet tne injury wasiccaused by tke néclirénce.of the dafendant, an? if the plaintie? heae-failed to do this your op eree tr the first issue should be no, one thet wilt ye an end ~~ ne capevand. the sguryenerd not.consid@ér *ke 6*her -fesues. fa} thea, tive Fine from the evidence: that thatpist ati tt pot upon the tefendants ftretcht train: for. the purpose of través)? ne from Sal fsbtury to Statasttlin and pate the conductor or brakesran,;the fare demanded oF hin than he Dec ame a passenrs r- An said tretn ang way entisted Sect? e- es . oe ot f- phesanger, anc. it: was the -euty of the def endant to step” te vs4 mee Serath at. Stateayiz6 for 4 sufficient lépeth of + tne Xo anqble the ‘plana Aire to ‘aligh* ‘therefrom: with snfet y, and tts faire to “Ao 60 was negeciag er - = Pidgenens ane if the jury fine thet the injury wees “Saused Sntreby she tees 3 xe f ee : ois > Te EF A at int itt ts ent tite. to recover and. tns Jury shoule: answer “h eases _ © ; ( ae (2:)7°> to sous ca llbet the sure: thea that whe Hine wap “ettised by :Ahe “pl cins = hm atictglents m4. rhe cen oe oe 3 Ltrs cont etbutary = epligance as Re if the dary 4 nt from the: evidence that the DietntsPfowas 4 ome ~ “ oh ‘passenger’ OY Lawfubty. on Ptrain hethkat.the--right’ to sssumé “that the i > Geena ant i a siiployed at sate, skilful) anc prident Cénd tector -Whe--would cx, anaghs expose nim to unnecessary and dan; erous Sieres ane Tf the Jury etsows “find ‘that waite the: trein wag. moving 6b the rate of 3 or "4 miles ‘per “hour. the nonenetor Or Other officer of the deferdant directed the LiPt--8o pes. Off the trarn he Aad a@- right: to assume-that the conductor ee rarticer so @tréct ingshir hee siseted a seve place anche woul? not i ‘y of contributary necl renee uniess. the 3 to deter a men of ordinary prudence. the. jury believe the plaintif* paid pts far’ as He alleces; but jumped from the trhin while ft Was. in ) any (heltekeet or commen? of th®-confuctor Or other arent cof the oo to-the: firs’ isste “sane he ae Of -1¢+We-4ure Relieve! ~- . dn fendan int ’ Pt-the: ronéic*o} 0 tions whick K-invtended fOr.stennzls tO -the énginecr ant .r6* bh nintif® andthe plaintiff mistook these motions for signals to himself -and got: off in-cconse quence “ane: was . ‘injurad the -answpr-to.the first issue shorld be no,-and this is 46 whethar- he paic™ his ‘fare: ar.rot. Unless the jury beli¢ve *hat-the sleuals WePe- made. Ly Shs “eontuc as deaseribed-by the plaAintirfr, ane plnintire_to gat that dDeing so made they’ w.re-“intended as sirntls £0 the pl orf the answer to the tirst tsat = (ey If. the- jury delisve thé co: (he wonl¢ stop nt States~ ville, that He AA@ t6 stop-to lett! negro off, meaning the plaintice, ‘ : . ~” om 7 ’ aeet ether the plaintiff Bee osricht +o expectshim to stop the train atthe, eile dSeasanifite time for him to pat off -the ¢ary ard nothing BGtre- seweet tive; unmigtakanhie command or invitation would —Justife him Im cette ine. orr white tng, tee tn Vas ee mot {ae (hp a snes oe awit? bee wane a « ’ * eas - sports t =. oes + ere 2% zy Hoxish* ‘ ca anghte “ Sinz eStore tan Pier. YrAan WE eos shor Site cotets ae he had fot: caught. ee, teat 3 fhe! ay w * Ab n¥4z “ht wnee's . 3 “ soe = wn . ‘ ar, onthe? Fig — ha Moe 4 am a eee ane arswes ti tirats "HO thet fe “an ent +o — : « tasue ee caus Byic to. the... be a a qury Sever, ef thes atey ee he engi aS es whee eR St, 50 wore Op Aon ck tee HO. ager eaeee Tees then hag You % cote neta eee ss AE She Hey et Sener amet: . : the ‘amount of dariege + third isane te whee yer aise daniages ir, tite case ce =O: the” weet ~~ Boies Jagtvictet that “ttre: NBS Justo come & reasonéble and tury Woulg be Pixing- tht of AP tbe: Ap InIeR OT ONe: ar hha ttery récetzad: and Se een aon oS pansht ton +s the pls Ant Tt f oule'c sider the physical and meritel suffering —apeater ey by ae eantrint.: the fisetsiwade con are hes Sh Ges ~ . , 2 ; ie platnise? by: ragon of His:-tnijuries, Thay Sne@’ tovthiim by—reasor or: h¥S ci sae = rss any expe 5 py in rs rilyv: 4 ~reen om (on > - bacthw. tes as. $ tine cand the TOES cocasté Calne, Qne- : te ene - me Alt CT ny 4ROWh fen he WITS a Pae ceeeet itém-of expensg (loss or--tneonren= a oria ~ ~ wa Fire of hi - bert andsany other Tt ororesult of the tijury necesse «<4 3-n Pent nrtt proximate effect-.o1 ° ~-* es oa ee ‘arb Gesatiial oe i a OM eS A mney a oe heathy bags deg She tegemlt ~ ah ‘tS 9G aaa iae 4 * ne pub fate aa cee Oe re sine “aa Aekoont we aay Been elite 9 Amy ye t ae vaio oan ae vO eta be e's, Sudha Rich aehe ‘Spann Ania Menge MO AED EE Re ORFs eo ae (nS Aa A te ob nl CS ae os being he ge pes te 1 een mae Ax m ae ae > Nn; bee 4 ‘ a gh ee LOCO OR tol ar YR aq © rebel ot] A mid. loanotova pis o F | ; U7 P Onikern Spoil ras Co os | Mas Cocca ermmenl low oo be heave, of this tim fo te Cuk | 7 ee | Bey Ny thooreny Corramerede He Datornr Lt ale Wa ee | L/- ae oh Lee L4.rt9 A ney age A SE a epee Cay, | pa th ff yt Oritasbaitry | Wh al- 7. to ate faanisf eatte f fewer Ahern on Fo | bs a sont Os Eat Gl oe ete Marrs Ceiakut od wn tis Qnufany Pi 7 _ hi Silas kr be Mina bat te a Se es = NortTH CAROLINA, SUPREME COURT. JUDGIENT. be argued upon the transcript of the record from the Superior Court of County :—upon consideration whereof, this Court is of opinion that there is. “@@__error in the record and proceedings of the said Superior Court. It is therefore consider e, that the opinion of the Court, as deliv- Justice, be certified to the said the costs of the appeal in this Court incurred, an aottars 18. 524%...) atul let execution issue therefor. A Tavs Copy: i om Cc Suprnce courts 1 Sept. ‘terk’. ia9e. # 291, Iredell Co. “Me di + Rickert “Y= “Southern Railway Co., appellant, rless ik G. F, Bason and A. &. Andrews, Jr. for a eilant: Amfteld & “Turner for appellee. eS | pe Furches ds: The ‘tagts ‘disclosed by the trial of this case strongly ; impress us ‘with ‘the, belief that the plaintiff. was not. entitled to a _-werdietiin bis. favor. At ‘the {sane time, we cannot Bay that there. | slick: | Caren be ? 00 fe. set: Sen o~ ant Jt. oR was not, evidence, WARNE, that entitled him to go to the jury and we eannet review the findings of the jury, however mich we migh “di ffer with then. But we, will gay that outside of all the evidence on the part of. the defendant, contradicting the evidence offered by the plaintiff, it. was not a very feascnab le statement ; that if the “plaintiff paid his fare from Salisbury to Statesville, as ‘he says he did; he would have tidden all the way from Salisbury to Statesville in an open coal car, early inthe morning of December 23ra, (only two days before Christmas) when he was emtitied to a coufortaule seat in the caboose, but if there is error in the findings of the jury , as‘we have said they cannot be corrected in this court unless the judge. Who triéd the case camitted an error of lew on the trial. if this were so, and a new trial ordered on that account, this would vitiete the. verdict. ‘tut it would not be because we have the power to réview the findings of the jury, or had done so. And upon | careful examination of the record, we find no error in law comm tted * by the court below, on which we can give & new trial. There are several exceptions taken by the defendant, and whi le none of than are formally abandoned, the defendant in its brief dis~ cusses but one of them. } The issues ‘submitted-are as follows: 1.Was the plaintiff injured” by the neghigenes of the defendant a6 alleged in the canplaseny ‘ans. Yes. ae ‘Was the plaintiff guilty of contributory negligence? Ans .No. a 8. what daca is the plaintiff entitled to recover by reason of said a? < js » 4 es»? . as ie Pee ! pee Ans, $500, ' vena “tor ‘the ‘purpose of sustaining the pleintiff’s contention , the plait ‘ef “tan tified. that he paid his. fare as 2 passenger: fron Salis- a to Statesville on the defendant's freight train, leaving Salis- ay esr ly in the morning of December 23, 1896 that. ‘he. ‘rode in an fe ‘ope baad used for Kauling coal; where ne. could ‘be seen. and was ‘seen; ‘thet he only paid his way fran Salisbuty to Cleveland station, and at Cleveland he paid his fare from that place to sta¥eaville: that. gehen the station whistle. sounded at Statesville, the train- *slowed ‘ap? to three or four miles an hour, and the conduetor, from the window of the caboose, signaled hin to get off, and in attexpting to do so he slipped, caught his foot in the stirrup and wag injured, He was corroborated oy other testimony as to the conductor*s giving the signal by the’wave of the hand, and as to the fall and injury. All this evidence was flat ly contradicted by the engineer and crew of the train, but still it was evidence for the jury, which they might fut dick belle, , believe periasian. It would seem that the defendant ‘thought it ‘gutéuhal. if believed, as it offered evidence to contradict: it. But whether the defendant thought it material or not, it was material if believed, and the court could not say it should not be believed. As to whether it should be believed or not, was a question. for the jury alone. Upon this evidence, the defemiant’s first prayer for instructions and theonly one discussed in the brief, was, that upon all the evi- dsnee the court should instruct the jury to find the first issue, "nol The Gourt refused to give this prayer and committed no error in doing so. ted the court given this prayer for instruction, it would have been deciding upon the eredibility of witnesses, the weight of the evidence and the facts in the case, 4nd would have been in direct ta of Section f ans of The Code. | | “This, prayer is in: otfect a demyrrer to the evidence, and admits , “tor: fine par pos et of the prayer, that all the evidence is true, Such oe eam ‘only be given in cases where the party anking ‘Ee inst ruc- tion it entitled to a finding upon the issue in his- favor’, taking all the evidence, tor the ether side to be true ~ éonsidered in the nos t ~-poasonablé light for the other side, baker v. Brem, 103 N.C. 72; “Nelson ve. Whitford, 82 N. C. 46; sored poiers, lil N.C. 475. “Tai the plaintiff's evidence to be tru fie yes a passenger on. the “Gof endgates train, and when it slowed une waa “told to get off and “was “injured inso doing. This was negligone®. “Lambeth vs. Railroad, 66 NW. 6, 4b; Hinshaw.vs, Railroad, eS co Oat We have examined the charge of the oourt, and find it full, fair and correct, The court amon: other things ‘ghar'zed the jury that if they believed (find) fran the evideme that the plaintiff was steal- ing @ ride, he could not recover, or, if the conductor did make sig- nals with his hand, not intended for the plaintiff, and the plaintiff mistook them, and undertook to get off the train and was injured, he could. not recover. We find no error in refusing the instructions asked, nor in the instructions given, Affirmed, ek er ARS. ae 3 OE at re seen ee i pigs: at wp ee an og lle ns 88 ~ ". 'illasahaa arbi aa Be neatiledasant onidamighons et oe Ene Mme “x ok rest A oMR Ca: BhASO -eAT OY death Sard sae See ve & Pree ee eee ‘ ~~ —— i ear ® 26 : KES 5 euedl Splat ac Df (tC {Re veReT ton fide 23°, eb s whi SF a St Chnge Se ae grin’ pkbrare’ uF -F. De Os. HT. FO 2 Ste arte + an - botueee ademas paid ATE He ROSS te hx 8° 6 it aaa tetny ye me * chosto, 7 aa’ odd yt 4 Wie” | rh, avn te vipers tos Stiiou a (or on ‘ IN THE CIRCUIT COURT OF THE UNITED STATES ) FOR THE WESTERN DISTRICT OF NORTH CAROLINA. ) ’ David E. Fleming ) Petition to remove this vs. } cause from the Stat? Southern Railway Compan y- ) Court to the Cirmit } Court of the United Stats. Pa To the Honorable the Judge of the Cirmit Court of the United States for the Western Di strict of North Car- olina- Your petitioner, the Southern Railway Company, respectfully shows that it is the defendant in the above entitled suit or ac tion which has not been tried, amd has not stood for trial at any tem of the State Court in which it was brought, but it is now panding for trial in the * Superior Comt of the Stete af North Carolina for the Gount y of Iredell, and that it desires to remove the sane into the Circuit Court of the United States for the West- arn District af Narth Carwlina- Your petitioner further states that in the above mentioned suit there is a controversy between a citizen of the State in which the said suit is brought and a cit- isen of another Stet®, to wit: a controversy between your said petitioner who evers that it was at the conmencerent and still is a cf tizen of the State of Vir- id David EB. Fleming the plaintiff, who, your petitioner avers was ent of the seid siit, and still is, a citizen of the State of North Car- Olina, in which sedd State said suit @ action was brought, and that both the seid David % Fleming amd your petiti m- er are actually interested in seid controversy: Copies of complaint and arewer, hereto attached, and made part etition- oer pe petitioner further states that it has filed herewith an affidavit that it my be rede to appear to the said Cirmit Court that from prejudice and local in- fluence your pet iti omr wila not be able to obtain justice in the said Stete court, or in any othe State court to which your petitioner may, have the ri ant, on ac influence, to remove said cause: in aceordance with the Act ‘af Congress in such casep pro- vided. ‘ Theat said suit is brought for the parpose of re- covering Twenty Trowend Dolters damage for persons 1 in- juriés alleced *o have been caused by. the negligenee of. the def@mdan*, your petitioner, amd that the seid sim or Twenty Thousand Dollers is demended in the complaint. davit mey be eccepted as mod and sufficient, and that the seid suit or action may be removed into said Cirmit Court of tho United States for the Western District of North Car- olire aforesaid, anc to the end that the seid renowl rey te perfected that mch order be mde in the premises as the Yreture of the case may require. G. ¥. Bason, Attaney for Petitiorer, defendant. Your petitioner therefore prays that the seid atfi-. i | | ‘UNITED STATES OF AMERICA, Wésvern District of North Carolina. Re i ee RBason, being duly sworn do sa "1 ) , ‘+ Bas i say that I am one of the attorneys for the petitioner in the above entitled ceuse; thay I heve read the, fererzoing petition and know ‘the contents thereof; and that the stetements and alle~ gations contained therein are true as I verily believe. Sworn to and’ subserabed before me this 4th November, 18%. G. #. Bason. Jas. A. Bell, Notary Public. — (Seal ). NORTH CAROLINA - Iredell County- David E. Fleming, VS. Southern Railway Compeny- The plaintiff complaining of ‘tix defendant, alleges: l. That at the tame hereinafter mentiored, the Ashe- ville and Spartanburg railread company was 4 corporation created uwrier authority of 4 charter granted by the Legis- lature af North Carolina and oning a railroad in said State, extending from Bilemere to the South Carelina line, a distance of about forty wo miles. 2. That at the time herearefter mentioned and contim- ously wmtil the present time, the Southern Railway Company, which is a mailgegd corporat ion organized under a charter granted by the legislature of the State of Virginia, was, and is doing meaness &6 a cormon carrier of passengers ani freight for hire in the State of North Carolina, from Salisbury, Biltmore ard Asheville, and was and is operating and rurming ite engines and cers over that cer- tein line of railwoad in North Carolina fran Biltmore and Saluda in mid State Spartan bar ¢ in the State of South Carolina, 3, That at the time hereirafter alleged and until the present time the sald Southern Railway Company had entire control and management of ard was solely responsi bie for operating, Spar tanbur é and by it emp loyes and agents, the aut sole management and contrel of and managing the said Asheville and points af oresaid thr ough he@ity end the sole sn~ of all the profits arising from the oper ating of @ to the said Southern Rai bray Company-was derived, froma lee as plaintiff© ie informed and believes, either made to it by the said Asheville end Spartanburs Rai lroad Coripany, @ >Y virtue of the said Southern Reilway Compeny having obtained contol or omership of a ma) ority of the etcak of ne saad roed- 4. That the Southern Railway Company, although created umer a charter granted by the State of Virginia is, as pplaintiff is informed and bel ieves, a domestic corporation in the State af North Carolina. Jo oe t on the 20th D Davia BE. leming., was in she employ’ of ee eR eea Ral 12 way Company in the capecity of front -brekemen on one of its freifht trains, to wit: a certain freight train drawn by engine No. 128, and whilst the plaintiff was engaged in the line of his duty as such front brekeman at the said time, at a Place called Saluda, on thedefendant's line of road aforesaid, and attempting to couple the said en- gine No. 128 by draw’ ter attached thereto to a frei ght car wader the darection of his superior comected with said train, he exumhbed was crushed between the said en- gine and the car on the siding to which he was attempting to attach the said draw bar, whereby one of his hip joints was discolated and his body and limbs seriously injured, Which injuries he is advised and believes are permanent and inearable and will forever prevent his being able to earn a livelihood which he might otherwise mmve done, put for the said injuries. 6. That et the time the plaintiff received the inju- ries aforesaid, he was ettempting to couple engine No. 128 to a freight car which was then at Saluda on the siding; that the coupler on the said engine was what is umally termed a draw bar and of the weight of about 120 to 125 pounds and of the length of between 5am 6 feet; that one end of thie draw bar was festened to the engine and the other end reached to the front af the pilot, md in order to couple with this instrument it ie necessary to raise the same about three fett and attach the end thereof to the coupler of the car to which it is desired to make the coupling, that it is impossible to make’ this coupling with- out the brekemen gesting on the pilot in @der to lift the drew tar and make the attachment; that on this occasi on the plaintiff wuiertook to make this coupling, expressly under the direction of his superior, whose orders he was reo quired and bound to obey; shet this draw tar Wis one of the old fashion methais by which couplings were mde, ad since the injury to the plaintiff, has been removed from this par~ tiewular engine and an automatic coupler placed thereon. 7. het the Plaintiff's pusmex injuries were camped by the negl ce of the defendant, she Southern Railway Con pany, for it feiled to furnish for the said engine No. 128, aia forthe ears then and there in use upon its tracks, at the eaid place, safe and secure machinery, equipmeits md devices for the purpose of safely connecting coupi;ng and operating the said engine's and cars upon its trach, but on the contrary the said engine and cars were provided with unsafe, defective, and insecure machinery, appliances end devices and those not adapted to nor answering the pur- pose of safely performing the work for which they were in- tended, as the defendant well knew. 8. That the plaintiff's injury was caused by reason of the negligence of the defendant company, and without fault om his pert, in filing tw equip ite gaid engine aS ears with modern, self -coapling appliances and devices, “@# as it might and should have provided for the engine and car ™? af oresaid- 9. ‘That ee stated afosesaid, the plaintiff's inju- ries, as he is advised, are serious, permanent and incur- able; that prior to this injury, the plaintiff had always hed good health and was physically strong and was in the regular line of advancement in his profession as a railroad man; that for four or five years we Plaintiff had been @ cOon- ductor in the service of the railroad, and had held other places in the service of the rafilroad for a period prior ; to this accident, altogether of about eight years; that the plaintiff has been caused to ae-suff er intensely in body eid mind on account of his injuries aforesaid and still con- times to suffer. om eccount thereof. 10. That at the time of the acc ident the plaintiff was 34 years of age and his yey et that time was about $52 per month; that while he had acted in the cayecity of coriuctor his wages had been as much as $90 per month- li. That by reason of the injury so caused the plain- tiff as aforesaid,he hws been endamaged in the sum of Twenty Thousard Dollars- Wherefore he demends judgment of the defendant. li. Por Twenty Thous and Dollers damages. g. For the costs of this action, md for such other and further relief as in law he my be entitled to. (Signed) Be Fe Long, Attorn xy for Plaintiff. David E. Fleming, after being sworn d@poses ard says that the facts set forth in the foregoing conplaint, as of his own mowledge, are true, and those stated on in- formation and belief, he believes to be true. (Signed) David BE. Fleming. Sworn to and subseribed before me this the 19th day of June, 1899. J. Ae Hartness, Ce S. C- pee Geo. B. Nicholson, D- C. North Carolina, ) ; ) In the Superior Court. David EB. Fleming, plaintiff, ) vs . e ) ANSWER. Southern Railway Company, defendant. ) | The defendant enswering the conplaint in this (causes says? 1° °°". That the allépatims coritalned in the first para- graph thereof are substantially true. 2. That the allegations contained in the second para~ greph thereof are substantially true- 3. That the niiegstiine eonth ined in the third para- graph thereof are substantially true. 4. That the allegations contained in the fow'th para- graph are not true and they are denied. 5. That, as defendant is informed and believes, the allegations contained in the fifth peragraph are not true and they are denied. 6. That as defendant is informed ari believes, the allegations contained in the sixth paragraph are not true and they are den ied. 7. That, the allegations contained in the seventh parea~ graph, as def endent is informed and believes, are not trué, and they ere denied- @ That, as defendant is informed and believes, the alle gtions conteined in the eighth paragraph are not true and they are denied- 9. That defendant has no anowledge n®@ inf orma tion sufficient to mabie it to form a belief, as to whether allemtion contained in the ninth paragraph are true © false, end it, therefore denies the same- iar Pe ‘ ip emcee) | by pees 10. That defendant has no knowledge nor re suf- ficient to enable it to forma belief, as to whether or not the allegations contained in the tenth paragraph are true, and it, thersfore, denies the same. 1l.. That the allegations contained oh the si ceaaitn paragraph are not true ani are denied. And, for a further answer to Said complaint, dé- titan says: l. That the plaintiff in attempting to make the coupling on the occasion when he was injured, went about the work in an umsual, awkward, unskilifull and unsafe mamer, to wit, by getting astride the draw bar to make the coupling, instead of standing to one side ane making it. That, by getting astride the draw bar, as he did, ne“almost certain to be injured in case of a failure to | make the coupling, mt by stamiing to one side, as was usual and customary with employes in doing this work, there would have been no danger of such an injury as plaintiff sustained. That, said draw bar was sasy to handle by standing to one side, as was usual and customary, and with ordinary care on the part of the plaintiff, he would not have bean injured by so handling it. Def ad - ant, therefore, says that plaintiff omsed his injury by his own negligence and want of care, in attempting to make the coupling as he did, instead of making it in the usual and customary marmeér. 2. That plaintiff contritmted to his injury by at- tempting to mke the coupling in the marmer set out in the preeesding clause thereof, instead of making it in the usual and oustomary marner, as is set out in the said next . preceeding clause. 3. ‘That, on the 2nd day of March, 1898, the plaintiff, for a valuable consideration to him paid by the defendant, exequied and delivered to defeniant a fall and final re- lease and Ak apiitne of any and all claims he had against defendant, on account of the injuries complained of in this complaint, a copy of which release is hereto appended, ‘marked "a", and defendant pleads the same in bar of this. watien. 4 That, as defendant is afivised by counsel and verily believes, plaintiff ought not to have and maintain this action, because on the 2nd day of March,’ 1998, for a valuable consideration, peid him by the deferdant, “By ex- ecuted and delivered to the defenmiant the release hereto attached, marked "A", thereby releasing defendant fram any and ail liability on account of the injuries complained of in his complaint, and defendant pleads the said release in estoppel of this action. Wherefore, having fully answered, defendant de- mands that it be hence dismissed with its costs. Attorneys for Defendant. NORTH CAROLINA, Wake County. A. B. Andrews, being duly sworn, says that he is an officer of the defendant ca’poration, to wit: the First Vice President thereof; that he les read the foregoing are Wor and knows the contents thereof; and that the same ie true.of his Own knowledge, except as to mtters therein stated on information and belief, and as to those matters, he believes it to be true. Sworn to and subscribed before me this__.day of 189.. To: D. BE. Fleming, Dr. Payable to B. E. Fisming, Address, Care Southern Railway, Address, Care South- Asheville, N. C. ern Railway, Asheville, N. C. KNOW all men by these presents, that for and in cm- sidertaion of the sum of one dllar, to me paid by the Southern Railway Company, the recsipt whereof, is hereby acknowledged, I, the undersimed, D. E. Fleming, do hereby release, and forever discharge the said Southern Railway Company, fram any claim, demand or liability for payment of any further sum or sums of money, for, and on account of or growing out of the following mentioned matter and claim, viz: 1897. Dec. 20th. For full and final settlement of all claims on account of personal injuries sustained by me, D. E. Fleming, employed as brakeman, at Saluda, N. C. Polk Coun- ty, Dec. 20th, 1997.......$1.00. And in consideration of the peyment of said sum of $1.00, to the above named payee, evidenced by my simmature to the receipt hereto below annexed, I --D. BE. Fleming-- do hereby promise and egree that said payment and receipt shall end will operate as a full and complete release, discharge and satis fection of any, every and all causes of action, claims and derends against the said Southern Rail- way company, arising or growing out of the cause or matte above set forthjn@nd also a perpetual bar to any eter suit or other process or procesding for the collection or legal enforcement thereof, or to any giaim or demand for demages under and by reason of any stutory eractmmt whe tsoever, or at common law, or otherwise, for the re- sults or in consequence of the said personal injury tome, the said D. &. Fleming which may have been or ai Pbaausan or instituted. And this agreememt shell further operate and be in full discharge, satisfaction, compromise, settle- ment, and ter of myclaim, demand, warrant, remedy, euit, or proceeding which may have been instituted by either of them, or if any judgment, arder or decree which may here- tofore heve been entered or obtained in my favor against said companies, oreither of them, for any sum arising or growing out of the claim or demand set forth above. It being hereby expressly declared to be the intention of this instrument’ to forever release the said Southern Rail- way Company from any and all other claims, demands or rights of ection of every rature origire ting prior to this date because of amy like cause or camses of com laint. Ard it being sxpressly understood ant egresd that neither of the above remed companies is under any obligation or requirement to take or retain me in its service or amp loy- ment in any position or capecity whatever. Given under my Yend ard e%al, this 2mi day of March, 1398. Witnese: Z V. Shaver Witness! James Dumphy. (Signed) D.R.Flaming (Seal). Received, April 2, 1893, of the Treamrer of te Southern Railway Company, one ani no/loo dollars, in ful” of the above account. (Signed) D.E.Fleming Witness: R.P.Fos ter. Ao ~-Gopy-- “QIRCUIT COURT OF THE UNITED STATES. FOR THE WESTERN DISTRICT OF NORTH CAROLINA. David E. Fleming, Plaintiff, VBe AFFIDAVITS. “The Southern Railway Company, Es Defendant. Gs Fs BABSON; being duly sworn, according to-layv, BBB. > ; Theat he is a citizen of the State of North Caro- lina, ard resides in the Western Judicial District of th? United States, within said State- That he is an attorney of the Somthem Railway Com- pany, the defendant in the ebove entitled action, now de~ pending in the Superior Court of Iredell County, within the Western District of North Carolina. That he lives in an adj oining County, erm is a regular practitioner before the Superior Court of said County of Iredell, ta which Court the above entitled action is deperding. That he has hed occasion ard oppormnity to inquire of the sentiment of the gsmeral public towards the de fendant Company, and, as he believes, knows what the public opin- ion in the County of Iredell and adjoining Counties, to- wards the defendant, is, having, as a.torney for defendant, tried actions in the courts of said Counties, from time to time, for several years. Affiant further says that, fram prejudice and local in- fluence the defendent, the Southem Railway Company, will not be able to obtain justice in the Superior Court of the County of Iredell/ an the State of North Carolina, where this cause is now pending, nor in any other State Court, to which defendant may, umfer the laws of this State, have the right, on account of such prejudice and local inf lu~- ance, to remove said cause. ‘That, having bem attorney)” me. eee Bet AS oa, ee ee for the defendant, md its predecessors, the Richmond & Danville Re. Re Co., and the Western North Carolina R. AS Co., for the pest ten years, he has defended many actions brought against said railrveds in the County of Iredell, and has knowledge of actions defended by other attorneys, during the same period: and that, in all such aetiona. whenever issues heve bean submitted to a jury, they. leva. been, without a single exception, found in favor of the plaintiff, end against the rallroad company, am this, without regard to the weight of the evidence, which, in some, at least, of the cases tried, was overwhelmingly in favor of the defendant .- Affiant further says, that he was attorney for the de- fendant, in the case of Rickert vs. So. Ry. Co., tried in the County of Iredell, during the year 1898, md decided in favor-of -the~pheaantiff, and, as he believes, against. the weight of ths evidence. So overwhelming was the evi- damce in fevor of the defendant, that the Supreme Court of North Carolina, in its decision, on page 256, Volum 123, N.C.Reports, used the following lamguage:- "The fects disclosed at the trial of this case, strongly impress us with the belief that the pleintiff was not entitled toa verdict in his favor’. Affiant further says, that, several years ago, there was a reilroed disaster upon the line of the Western North Car- olina Railroad at a point about two miles fron Statesville, the county seat of Iredell County, known as the Bostian Bridges disaster, in which there were mny porsas killed, , and a great many wounded. That a very strong prejudice existed aginst the Western North Carolina Rai lroad Company; and the Richmond & Danville Rai broad Company, ths prode- wih, 4 8 oassor of the. Southern Railway Company, on account of this disaster. ‘The ¢ threats were made, and proceadings taken, and proc®edings taken, as affiant is inf ormed and believes, to indict the officers of these Companies, to wit, the pre- | dsc essors of the Southern Rei lway Company, for murder.and man-slaughter, on account of said disaster. That the said disaster, as affiant.is informed and.believes, was,caused by interference with the railroad track, at the point ep se - ified, by outside perties, for the purpose of wrecking the trains of the defendent's predecessors, and robbing the passengers @n the same, and carrying off therproperty of the comany and its passsnews.- That reny suits were instituted against defendant's predecessors in said County, growing out of this disaster, and the same prosecuted with vigor and bitterness. Affient further says, that, on account of these fore~ going facts, and metters, that such pregudi ces and local : influence exists in said County, m@nto prevent proper ad- ministretion of justice in ths above entitled cause. G. FP. Basu. Sworn to and mibsecribed before me this 4th day of November, 1899. Jas. A. Bell, Notary Public. IN ‘HE CIRCUIT COURT OF THE UNITED STATES. For the Western District of North Carolina. David BE. Fleming, ) Bond for the removal of this vs. ) cause to the United States Cir- Southem Reilway Company. ) cuit Court for the Westem District of North Carolina. KNOW All, MEN BY THESE PRESENTS, thet the Southern Rail- way Company as principal, and A. B. Andrews, of Wake County, North Carolina, as surety, are held and firmly bound unto David E. Fleming, plaintiff in this action, and all-othsr persons whom it may cancern, in.the perel sum of Five Hun- dred Dollars, for the paymmt of vhich, well and truly to be made, we bind ourssives, our heirs, representatives, successors and assigns jointly and © severally, firmly by the se pres@mts. Yet upon these comitions: The said Southern Railway Company having petitioned the Cirmit Court of the United States for the Western Distric+ of North Carolina for the ranoval of a certain cause perming in the Superior Court of Iredell County, in the State of North Carolina, wherein David EK. Fleming is plaintiff, end the Southem Railway Company is defendent, to the said Cireuit Court of the United States, in and for she Western District of North Carolina; Now, the.ofore, if the Southern Railway Company, th petitioner, shell mter into the said Circuit Court of the United States on the first dey of its next session, a copy of the said suit and shell well and truly pey all cots that may be awarded by the said Civmit Court.of the Unitad States, if the said Cmrt shall hold that this mit was wrongfully or improperly removed thereto, then this obliga- tion to be void, otherwise to remin in full foree and virtue. Witness ow lends and seals this 3let day of Seto- ber, A. D. 1899. Southem feilway Company, by G. F. Bason, Attorney. A. B. Andrews. (Seal). STATE OF NORTH CAROLINA. COUNTY OF WAKE. I, As Be Andrews, of said County of Wake, and State of North Carolina, the surety named in the foregoing bom, : being duly sworn, cepose and say that I ama resident of the State of North Carolina, end a preperty holder therein; and that I am worth the am of Five Hundred Dollars over ~ end above all my débts amd liabilities, md exclusive of property exempt by lew from exeeution, and that I have prop- erty in said State of North Carolina liable to execution of the value of more than Five Hundred Dollars. A. B. ATDREMS. Sworn to and eubscribed before me this 3ist day of %t. 1899. H. A. Miller, (Seal) N. P. , } In the Cireuit Court of the nite States: q For the Westem District of North Carolina. David E. Fleming, Plaintiff, Order of removal of this cause to the Circuit Court of the "nited States for the Western District of North Carolina. VBe Southern Railway Company, Defendant. ¢ fh Re 4. aa as pam cetiiietnem , —— CF i wT SNA Z This cause coming on t9 b# heard, upon the complaint ioe and answer, and the petition, affidavit, and bond, filed therein hy the defendant, Sothern Railway. Compeny, under the provisions of the Act of Conrress of the United States; and it appearing that this Court has jurisdiction of this suit or ection; and it being made to appear to this Court, that, from prejudice and local influence, the Southern Railway Company, a citizen of the State of Virginia, and defendent in this suit or ection, will mot be able to oh- tain justice, in the Superior Court of the County of Ire- dell, it being the State Cmrt, nor in my vtha State Court, to which ths said defeniant, may, under the laws of the State of North Carolina, have the wight, on accomnt of such préjudice and local influence, to ramove said cause. It is, therefore, on motion of counsel for defendant, , Southerm Railway Company, conpidered, and ordered, that, the petition, bond, and affidavit, filed herein, are suf - ficient, and that the same ars accepted and approved. It is, further, ordered and adjudged, that the Clerk of this, the Cireuit Cort of the United States, cartify to the State Court, to vit. hg Sup or or Court of the County of Iredell, the same, being within, thie the Western District of North Carolina, ‘this onfer of removal, together with copies of the petition, bond, and affidavit, filed by the” [Betendant, 49 the 9nd, that thea sal d_ Stats Coart may be “adviaed, >of ho ® Rotion; of this Court, and of its order of _emoval as +0 she fiart her end, that the said Ste te Court, . t ~ may pir a0 ac ro further with the ‘cna i suit or. eetion: and “fo the: “and, al $9, that. the said State Court may “givent the Cler wot the ends Xourt of the Coun ty of Apodely, +9 Laks a Fs bade Hie ates ful. did aataionas vanpellanieaedie weeord or: said suit or‘ection, md certi"y the same to this court, for trial. And it is 89 ordered. H. G. Ewart, v. S& Judge. At Hendersonville, N. C., November 4th, 1399. ) Circuit Court of the United States, at Statesville, N.C. I, H.C.Cowles, Clerk of the Circuit Court of the United St- -tes at Statesville N.C. for said District, do certify the foregoing to be a true copy of the original petition filed in said saris: with accompanyingppers and order thereon, as xinxunxed Xauneupanxiag as the same remain on file and of record in my office. This the 7th day of November, A.D.1899, In testimony whereof, I hereunto subscribe my name and affix at office day and year the seal of the said court, above written. LA AMth Ax derk of said Court. United States of America, Western District of North Carolina, ) © iia : _—_—_—— mn the Circuit Court of t United States;For the Wester District of North Carolinas | David E. Fleming, x Plaintiff, vs So) The Southern Railway Compal : Defendant, Petition, Pleadings Affidavit, Bond, Order. Copy for gxieixsuperior Iredell County, N.C. FILED. 1% THIS OFFICE, H. C. COWLES, Clerk, North Carolina, Iredell County. ) February Term, 1899, ) In the Superior Court, ) Southern Railway Company, Plaintiff, COMPLAINT. vs. es Jo Tee Fussell . Defendant. The plaintiff, complaining, alleges: That it is a railroail cerporation, mly incorporated under the laws of the State of Virginia, amd at the time here- inafter stated was in possession of mf operating, as a com mon carrier, the railroad running from S$atesville to Taylors- ville, known as the ATH Set Mein Restre That, on the 5th day of October, 1896, it received at its depot at a station called Hiddenite, on said railroad, from one J. 0. Thomas, a car-load of pine lumber, fro trans portation from s@id station of Hiddenite to Statesville; the said car-load of lumber being consigned to the defendant, J. Le Russell, That the plaintiff hemled said carlead of lweber fren Hiddenite to Statesville md there delivered the same to the defendant, as it had contracted to do. That.,..altemmards, to wit, onthe 80th day of Oéteber, 1806, the defendant brought his suit against the pleint irr in the Superior Court of Iredell County, alleging that the plaintiff nad failed and refused to deliver said car-load of lumber to him, said J, L. eiios2t. defendant in this action, whereby he claimed that he was demaged in the sum of Four. Mundred Dollars. (2) That, afterwards, to wit, at August Term, 1897, of the ‘superior Geurt of Iredell County, the said J. L, Russell still falsely en@ freudulently asserting that the said car-load of lumber had never been delivered to him, and that he was greatly endamaged by the failure of the plaintiff so to de- “Yiver it~ to wit in the sum of One Hundred and Ferty Dollars, inaucea this plaintiff, the defendant in th@® action, to agree upon a compromise and settlemnt of his said action, and to sonsent to a judgment in favor of said J. L. Russell for One Hundged and Forty Dollars and the costs of his action, and that said judgment was daly drawn and consented to by | counsel for both parties, and signed by Albert L. Coble, the Judge presiding at said Term of said Court; and that, after- wards, to wit, on the Ao” aay of Mihnndee » 1897, the said Southern Railway Company, plaintiff in this action, paid off and settled the said judgment for $140.00 and the costs of said action, as appears upon the record of said Court. That this plaintiff, the Southern Railway Company, vas induced to consent to said judgment am to the payment thereof vy the falee and frendulent representations of the said J. lL. Russell, that said car-load of lumber hai never been delivered to him; he,the said J. L. Sieeell, then am there knowing the said representations to be.false, to the damage of the plaint- iff in the sum of One Hundred and Forty Dollars @id the sostes of thie action, amounting te $2722 » se @ppears upon the record of this Court, aggregating the eum of $/67 2%‘ Wherefore, pleintifrY demands judgment fer said eum of g/67 Zh with interest on the same from the Z- “aay of dbftate~ » 1897, together with the costs of this action, to be taxed by the Clerk. J Ae “4 fan Sounsel for Plaintiff. aiff? Yo afeoo wd Hite verternt ,TORL , o*ral" aft wd Perr sf af co? artotica North Caroline, In the Superior Court, ) Tredell county. ) February Term, 1899, Southern Ratlway Oompery, | Plaintiff, vs. ) 5 ( COMPLAINT, ) ( ) J. L. Russell, Defendant. The plaintiff alleges: Theat it is a railroad corporation, duly incorporated under the laws of the State of Virginia, and, at the t ime hereinafter stated, was in possession of and operating as a common carrier the railroad ruming from Statesville to Tay- } lorsville, Known as the Taylorsville branch. That, on the Sth day of October, 1896, it received at its depot at a station called Hiddenite on said railrai, from one J. 6. Thomas, & car-load of lumber, for transpor- | tation from said station of Hiddenite to Statesville, N. O., the said car-loai of lumber being consigned to the defendmt, Jd. Le Russell. hat the plaintiff hemled said car-load of lumber from Hiddenite to Statesville, and, at the latter place, delivered the seme to the defendant, as it had contracted to do. That, afterwards, to wit, on the 30th day of October, 1906, the defendant breugit his action against the plaintifr in the Superior Court of Iredell County, and in his complaint, filed in said ection, he faleely md freudmientiy alleged that the plaintirf had failed and refused to deliver said oatload of lumber to him, the said J. L. Russell, the plaint- | | Rim; all of which said false and frestulent allegations were we = <s ar sk eS ee (2) iff in said action and the defendant in this action, whereby and a account of said alleged failure and refusal to deliver said lumber, he falsely and fraudulently claimed that he was demaged in the sum of Four Hundred Dollars, whereas, on the contrary, the plaintiff avers the truth to be, that the said J. L. Russell then and there well knew that the said ‘allegat tion, that plaintiff hed failed ami refused to deliver to him the said lumber, wa? false and fraudulent, md them ami there well knew that the said lumber had been duly delivered to made with intent to cheat and defraud the plaintiff in this action out of the said eum of Fasr Hundred Dollars. That afterwards, to wit, at August Term, 1897, of said Superior Court of Iredell county, the said defendant, J. L. Rus@ell, still falsely ami fraundilemtily, and with intent to deceive this plaintiff, asserted that the said car-load of lumber hed never, up to thet time, bem delivered to hin, | and that he was greatly endemaged by the failure of the plaint | iff so to deliver it, to wit, in the am of One Hundred and Forty Dollars; - am plaintiff, not being able at the t im, to find eny evidence @ its books, or eleewhere, of much de- livery, md relying upon, and being deceived by, said false and fraudulent representations of the said J, L, Russell, consented at said term, thet a judgment in said action in favor of saif J, L. Muscell and against the plaintiff, south- ern Railway Caspaty, for One Hundred and Forty Dollars ($140. ) and the costs of said action, might be mtered of recerg in said Court, and said judgment was accordingly signed by the fudge presiding at said Court and @mtered of recard, That, afterwards, to wit, on the 18th day of September, 1897, plaintiff still relying on the false and fraudulent representetions of said J. L. Russell, that said car-load of lumber had never been delivered to him, and still being un- able to find any evidence that the sane hat been delivered to him, paid off and sett joa the said judgment for One Hundred and Forty Dollars ($140.00) ami the costs of said action, to wit, the sum n Twenty Seven and 95/100 Dollars ($27.95), aggregating the eum of One Hundred ami Sixty Seven and 95/100 | ¥ ; i Dollars. ” That ‘tntp plaintiff, southern Railway Company, was in- duced to ecneent to said judgment for One Hundred and Forty Dollars and costs, and to the payment thereof by the afore- said false am frentulet allegations and representations of the said J, L. Russell, that said carload of lumber was never deliveged to him, which said allegations and represen tations the said Russell knew at the time to be false. Wherefore, plaintiff demands judgment against the de- fendent for the wm of One Hundred and sixty Seven and 95/100 | Dollars ($167.96), with interest thereon from the 16th day of September, 1995, together wth the costs of this action, to be taxed by the Gerk, Obs Pruir, fF Ge ma GAS Bauer Attermmeyes for Plaintifr, North Carolina, In the Superior Court, Iredell County. ‘To February Term 1899. | Southern Railway Company, Plaintiff, { { -vs- { | i J. L. Russell, Defendant. eh a cn The defendant, answering the complaint, says : lst. That the allegations of paragraph one of | the complaint are admitted to be true. 2nd. ‘That it is admitted that the allegations | of the second paragraph of the complaint are true. Srd. The defendant denies the allegations contained in the third paragraph of the complaint. 4th. That the allegations as set forth in the | fourth paragraph are admitted to be true. | Sth. That the allegations of the fifth para- | graph of the complaint as therein set forth are untrue and are denied. It is true that after the suit referred to : was brought by this defendant against the plaintiff that the same was compromised agreeably to a judgment signed at August Term 1897 and of record in the said cause, the same being a consent judgment signed by the Judge after the counsel had fully apprised themselves of the facts and con- | sented thereto in writing. It is utterly false that this defendant made any false or fraudulent representations in that suit to induce the said compromise or to deceive the | plaintiff in this action, its agents or attorneys. 6th. That the allegations of the sixth para- graph are untrue and are denied. Wherefore the defendant prays that he may go | hence without day and recover his costs in this behalf expended. SECOND DEFERSE. (2) The defendant above named reiterating his de- fense as above set forth as if set forth more fully here, further answering the complaint says : lst. That all of the matters and things in dispute between the plaintiff and this defendant were com- promised and settled in a civil action in the Superior Court of Iredell County begun on the 30th of October 1896 against the Southern Railway Company and the Western North Carolina Railroad Company and terminating in a judgment for the plaintiff against the Southern Railway Company at | | the August Term 1897 agreeably to the express written agree- } ment of the counsel for the plaintiff and defendant in the in dispute the same matters and things as involved in this | said suit, and the said suit having as the subject matter | action which is now brought against this defendant, and the said suit and the proceedings therein are plead in bar of this action. Wherefore the defendant prays that he may go : . ee. hence without day and recover his costs. Attorney for Defendant. by Coane af bacerh fotsd haw, Creu, + Gig | je Ahaxda Whthen ks ade QmenxdeD (h~ AA aud Jo LoL peleuqeue: : 2 oe Lijy She byeso i woeTCu mpICp T2 vom phonEps eleyres eyTe Geyeugeus’® gig TY giebnge spe ecwe wesrcelLe gug spyLbe we yLaoTaSG JL sPIS esiq ents’ sug gre ewyq ents peayTrE se gpe enplecs wessen meus OL g¢pe Comedy Lor. gye Dy#ILeTL. GQ qe,eugeLus JU VE gye yrineg jetnw yea, slivegpyaA fo spe exbiee@e ALT feu ©&\.Lee- Lot gue DJSIVSTLL GLueywas gpe gongpeLy BETyAGA COWhELA GF GYLOTILS ywTTLOeg COWbeLA wug seLmyLepyTEl ye we [Agluen, gGeyueg ¢pe yongpehy weyjagvd COwbeLA Bug SLE BeRsebi’ |/O.¢U OUMke OL yhegesy Gom,A peE ua On ERE QUEP CL OCFOPHL Teav OWOMTSeG PLO Ves TG , CTAT] @csgyor Ju ove |mhepn cs qrebnree pegeeev gpe BYHTIVSTLL FUG FET® Gelevawneg aele COu- Tes * LVer STT OL spe wesseLe sua gspyule yu LOLGyek wwemeLTLe spe comby sy us 2vAe Lauee GR PPOAe Ves LOLEP OB TL BEF LOLEY WOLe LayyA vere’ L¥O Ge@Lerygeus BpOoae uEMEG LeTseLes TUL pre ge- Sftlanta, Ga., _—ilii. in Account With i, A. C. CRUSSELLE, M. D. Office, 77% Peachtree Street, Residence, South Atlanta. SOUTHERN RAILWAY COMPANY vs J.L. RUSSEL. ISsuEsS. l¥irst---- Did the plaintiff haul the car load of lumber from Hiddenite to Statesville and deliver the same to the defendant as alleged? Answer---- ve Second---- Did the defendant falsely and fraudulently, with intent to deceive the plaintiff, assert that the ear load of lumber had net becn delivered, and thereby obtain bg com- wes wee ae eS eve . promise judgment . fet dot endant, Qn that cause for so] principal and Yes. of action? — Answer---- Third--- Was the plaintiff induced by the false and fraudu- lent representations of the defendant to consent to the compromise judgment, - omer ae Anewer---- | ~ + Fourth---- What damage, if any, hans the plaintiff sustained by reason of the false and fraudulent representation ae of the tomate] defendant, and the payment of the #140. principal cost of action? Answer---- Pa oe ee ee : ate? : North Carolina, ) ) ‘ In the Superior Court. Tredell County. ) Southern Railway Company, Plaintiff, V8. J. L. Russell, Defendant. We acknowledge mirselves bound unto J. LL. Russell, the defendant in this action, in the sum of Two Hundred Dollars; to be void, however, if the plaintiff, Southern Railway OCon- pany, shall pay the defaidmt, J. L. Russell, all such costs as the defendant may recover of the plaintiff in this action. Witness our hands and seals this day of 1899. A. B. Andrews, being @uly sworn, asys that he is worth the sum of Two Hundred Dollars over and above his debts, liabilities and preperty exempt from execution, Sworn to and subseribed before me the 77 aay of 204. 1899, ML haa etssao ices he Qe 4 i? ePtsod tol Teactr.