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HomeMy WebLinkAboutRailroad Records 1906 SUM#ONS FOR RELIKF.—Printed ang JO Gate at The Mascot Job OMice, Statesville, N.C. , Summons For Relief. ereby Commanded (0 SUINMON.. at the Court House TPP soni ao , AGEL. the same being the A day « awer defomplaint, acopy of which will be deposited in the office of the Clerk of the Superior Court for sutd County, w thin the first three days of said Term, and let said Defendant take notice that it AA_foit to answer to the said complaint within that time, the plaintiff will apply to the Court for the relief demanded in the com plaint. Hereof fail not, and of this summons make due return. AGAINST. We acknowledge ourselves boand unto. . the defendant in this action, in ‘shall pay the defendant . In the Soeperior Court, Dollars, to be avoid, however, if the plaintiff. all such cost as the defendant . may recover of the . (SEAL) (SBAL..) ee ce 8 ee lities and property exempt from executions Sworn to and subscribed before methixs. . .dayof.. Term. Go/ .POR RELIEF. rior Court of of the i ff, being sworn says he is worth the sum of two hundred dollars over and above hik . (SRA) ™ laldl- \ttorney < : Plaintiff « LL OLE OLE TOT LN eS OL: oe | | \ worth Carolina, ) In the Superior Court. P Iredell County. ' February Term 1901. Charles DPD. Mott, { i vs { COMPLAINT. | { Southern Railway Company. The plaintiff complaining, alleges: First:- That the Southern Railway Company is a corporation doing business in the State of Yliorth Carolina as a common carrier of freights and passengers, and having machine shops for overhauling and repairing and doing all things necessary in order to maintain the operation of the engines and cars connected with its business; said machine shops situate at Spencer, WN. C. Second:- That at the times hereinafter mentioned the plaintiff, Charles D. Mott was an employee of the defendant road, working at Spencer, in or about what is called the round house of the defendant, doing the work of what is commonly called, engine wiper and such other work as was required of him by his superiors; that his immediate foreman was one Charles Trexler, fareman of the engine wipers, and on the 16th of December 1900 the plaintiff's foreman ordered the plaintiff — . 29h to help one Henry Roucher to take off the tires of engine No. Sm and in ¢ obedience to the said orders of his foreman he did assist the said Roucher in the said work; but he did not do so until he had first insisted that there was not sufficient help to do the said work - thers being then and there a deficiency of ha accopnt of wh b De Lg Aurion srhes Ped = Ag hbzs * Sunday - but nevertheless he was ordered to do the work, and he undertook to do his part - that the only persons engaged in the work of taking off the tires was the said Roucher and John Sims and the plaintiff - phat. ' ~2- ‘ane wide: Reueher after heating the said tires directed the plaintiff to hold a steel bar with one end upon the gieukaer of the plaintiff and the other end resting on the hub of the Wheel of the engine, and also ; oo phe Le Sims to cop che a Poa AN fe ' that the said plaintiff, had the said Bar resting upon his shoulder at one end, and the said Sims had his ana é on the said bar, and the said Roucher after heating the tires began knocking it off, and did knock it off, and the said Sims turned loose the bar and the tire was knocked off by the said Roucher up the ae. See whilst plaintiff was in the position that hes Baie 9 Mecfirrior eee had, directed plaintit+ to be, and thereby the plaintiff was crushed to the ground, by which he received serious injuries in his right shoulder, in his back, and received serious internal injuries, his injuries being of such a nature and to such an extent as to have prevented him and disabled him from doing work, and as he rede, having ingured him permanently. That in consequence of his injuries he has lost 15 pounds in weight, been deprived of his wages and rendered unfit to follow his occupation - that he at the time suffered excruciating pain and has still continued to suffer great pain on account of his injuries. At the time of his injury he was obtaining $28.09 per month as wages, and shortly before the said time had been earning $37.50 per month - he had been at one time foreman of engine wipers for nearly a year - at one time he had been in the service of the Atlantic and Charlotte Air Line Railroad shpps - at onc time he was in tie einployment of the Richmond & Danville Railroad Company on the A. rT. .& O. division - at another time he was cook for Superintendent Bridges on the Western road- that he had been in the service of the Pullman Car Company for a period of about six months - his services in these several capacities covering a period of about 15 years. That at the time of his injury he was about 48 years old, in good health, strong and able-bodied. Third:- That the defendant is guilty of negligence in injuring the plaintiff under the circumstances aforesaid: (1) For that it failed to furnish sufficient help and assistance to take off the tires aforesaid; (2) For that the work assigned to plaintiff by his superior Was such that they well knew that it could not be done in safety by the three persons aforesaid, for that the tire itself was of the weight of : geven or eight hundred pounds, and the Company should have furnished «3m a sufficient help to have protected plaintiff against his peril; (3) That plaintiff was under the orders of his superior and liable to discharge if he had not obeyed the instructions of his superior; (4) That the Said Roucher should not have subjected plainti?’f to the peril to which he did subject him to, and was guilty of carelessness in throwing the tire upon him in the position in which he was without sufficient assistance furnished plaintiff. Pourth:- That the defendant allowed the plaintiff after he was injured and crushed and mangled upon the ground to remain there for the period of about one half hour without assistance or help, or attention and until a person connected with another department of work came to his assistance and caused him to be removed and enabled to get to a hysician, towit; Dr. McKenzie the railroad physician. . , I Fifth:- That by reason of the premises the plaintiff has been endam yy th elessness the defenjgant and its agents in the sum of ™/-— - Dollars. Peace ee judgment of the defendant in the sum o Dollars and the costs of this action to be taxed by the Clerk, and to have such other and further relief as in law he may be entitled to. \Attyws. for Plaintiff. Charles D, Mott after being sworn says that the foregoing complaint is true to his own knowledce, except as to those matters and things therein stated upon information and belief, and as to those matters, Plaintiff. he believes it to be true. Sworn to and subscribed before me this the /Z-- day of April 1901. Nowth Carolina, , In the Superior Court» | ~~ Iredell County. ) February Terr, 1901. Chase De Mott, vs AN SWRR. Southern Railway Company. The defendant answering the complaint in th®8s cause says;- That the allegations contained in the first paragraph are true. That the allegations contained in the second paragraph are not true and they are denied. That the allegations contained in the third paragraph are not true and they are denied. That the allegations contained in the fourth paragraph are not true and they are denied. That the allegatiens contained in the fifth paragraph are not true and they are denied. And for a further answer and defence to said action, defen~- dant says, that the plaintiff contributed by his own negli- gence to any injury he received, by allowing the steel bar to slip out of place. That H.L.Rusher, who was doing the work of removing the tire, had placed this bar with ene end on the hub of the wheel between two spokes, and directed the plaintiff to hold the other end; that @ if the said Mott had kept the bar in the position in which it was placed by said Rusher, he would have been perfectly safe, but he negligently allowed the bar to slip out from between the spokes, so that as soon as any part of the weight of the tire Came upon the bar it slipped eff the hub abd fell on plain- tiff. And for a further answer ani defence to said action, defen- dant says, that the plaintiff contributed by his own negli- gence to his injury by continueing in the position above described, to-wit, with one end of: the bar on his shoulder and the other resting on the hub, without being supported by (2) the two spokes, after he had been twice warned by his co- employe, John Sims, that if he stayed in this position, with the bar unsupported, as it was; he wonld be caught. And for a further answer and defence to said action, defen- dant says, that whatever danger there was in doing the work, at which plaintiff was injuved, was open ani visible; that plaintiff mew as ruch about the danger as any other person could have known and voluntarily undertook to hold the bar, notwithstanding the warning given to hir by John Sims, his co-erploye. | Wherefore h ving fully answered, the defemiant demands t that it go without day and recover its coste 9 ) oa - F 3 si 4 ly ? | R 4 / Agadir, Vee A Lhe SiuneY ) % 7 Sed fe ed o- — ee ow Attorneys for Defendant. North Carolina, Wake County. A.B. Andrews, being duly sowrn, says that he is an officer of the defendant corporation, Southern Railway Corpany, to-wit; the First Vice President thereof; that he has read the foregoing answer ami knows the contents thereof, and that the sam is true to his own knowledge, except as to matters therein atated on information and belief, and as to those matters he believes it to be true. Sworn to and subscribed before me ) this the 4 day of April, 1901. } hdl (s) n+ ~-o09 ahi yd bermaw eolwd meed bat ef vetts paezoge or: wSiw .aoitleog aldt ab hevate of TL Jat? ,ant’ ato’. ,peyaltgute, etiigna® ac hlnyow ef yea tf as , betaoecwerntnsad «Af ——ptebh ymoltes:-hise of soneteh ir. sor tous" Oc 2. Binh cf aay aves? ey sb “eve? shw Ql o, ayaa eee wre terre WET Pe a # 2 Dibba tienen tease ire rrh ee mar Ty Lahr Le o's ~ bide! fous -4 werdl “TI ientats + ‘ wales j twort eVnnh OLNo: 260" GrtO-09 ay Co qd etote ett . ee t ; | ‘+ 2ors kw on 32 PHe3 hern Rai -_—*- oO ow em & = Sout 4.0 ev *rnro” ahs 7 me af ef tad? ayne gimwon yieb ytked «ewe oA vraqre? vawllan mroetuo .moli stoqgi« toleb ex Yo w9l" to eo? baet ardec tad? 3 toeve " Sanl™ eft ;ilweo? ‘ grebiee ts aol @wer ert tad? bow ~Tomed?s atrescoo efs evordl hrs ewes jaloye oT .* 4 botaia alexpt3 etef‘an of as Sqvoxe ,enbefwornx awo ald of ei? al w sevolled er eaenetten ef0! ef 25 boas ,.tolied oma colt amoilal cao eer? ¢ of 23 neci"oacna Mts oO { -f0e8L gilts 10 “nb F a . ‘ Charles PD, Mott, vs Plaintiff's prayer for instructions. Southern Railway Company. | Pirsti- If the jury should find from the evidence that the work of removing tires from engine wheels was dangerous, dut that it was less dangerous when performed by a sufficient number of competent and skilled men, and that the defendant knew this fact or should have known it - and the jury should further find from the evidence that the defendant did not, upon the occasion in question have a sufficient number of skilled men to do said work with safety - than I charge you that the failure on the part of the defendant to have such Melp to perform said work, was negligence and if the plaintiff was injured thereby you should answer the first issue *Yes.* Becond:- If the fury should find from the evidence that the safest way to hold the tire of the engine wheel in place was by placing the end of the iron bar between the spokes of the engine wheel at its hub and shoulé further find from the evidence that Rusher instructed the plaintiff to place said bar on a block between the short spokes above the knuckle, then I charge you that the giving of such instructions was negligence, and if the plaintiff was injured thereby you should answer the first issue “*Yes.* Third:- If the jury should find from the evidence that after commencing to remove said wheel, the same was caurht and should further find from the evidence that when in this condition that it required the help of six men or more to remove said tire with safety to those working thereat and the jury should further find that this fact was known or should have been known to Rusher, the man having said work in charge ~- and the jury should further find that notwithst«nding said knowledge, the said Rusher proceeded with said work with an insufficient number of hands, such action was negligence, and if the plaintiff was injured thereby, you should answer the first issue "Yes .* : Pourth:- If the jury should find from the evidence that Rusher had the right and could procure the discharge of the plaintiff for diso- bedience of orders, and that he ordered him to do the work in question, the acts of the plaintiff in obedience to such orders cannot be imputed to him as contributory negligence, and the jury should answer the second issure "No.* Pifth:- If the jury find by a greater weight of the evidence that the plaintiff was ordered to help taxe off the tire as alleged; that to take off said tire was dangerous and required skilled and experienced hands; that the plaintiff and John Sims were both inexperienced; that the defendant failed to warn the plaintiff of the danger in taking off said tire; and further find that the plaintiff was ordered by his superior 3 whose orders he was bound to obey to take off the said tire and while so doing he was injured as alleged, the defendant would be liable and the jury should answer the first issue "Yes.* Sixth:- If you find by a greater weight of the evidence that there were an insufficient number of hands furnished by the defendant to remove the tire and to do it with safety to the plaintiff and those engaged in removing same, and that the plaintiff was injured by reason of such failure, then the defendant is guilty of negligence and you should answer the first issue *Yes.* Seventhe=- The general rule of law is that “hen one person enters the employment of another he assumes the usual and ordinary risks of his employment. Under our st@tute an employee of a Railway Company does not assume risks arising from the neglirence or incompetence of a fellow servant. If the jury should find from the evidence that the plaintiff's injuries (if you should find he was injured) resulted from the fact that the défendant did not provide a sufficient number of skilled men to do this work with safety, then such @angers ,are net the usual and ordinary rieke incident to the plaintiff's employment, but were unusual and extraordinary, such as the plaintiff did not assume, and you should answer the first issue *Yes." Bighth:- The burden is on the defendant to prove by the weight of evidence the contributory negligence of the plaintiff. Ninth:- If you fing by a greater weicht of the evidence that it required two or more skilled and experienced hands to perform the work in whi-h plaintiff was engaged at time of the injury; and further find that there was only one other hand besides the plaintiff; that they were both unskilled and inexperienced; and further find that the plaintiff was ordered to take off tire by his superior under these circumstances and that plaintiff was injured in so doing, the defendant is liable and you should answer the first issue "Yes," Of $549 Sonshiva ent Fo tanto 194 . re " “S7e an? man yTeqg a? f& Hrepe soteineaxe ftp veliiar sin wrekS #484477 bom syst i? A «ache 4 . “wen oe tevtafr y ‘ong @n2 -TVisgataly adit? eedteo ae Manta ato vine waa “ i? 7 an? ry +i? ~— ey ts " reg Sry cea tey ady7wesres n al if {> th weet. "SONY MOL teat? “£3 mAs Pou " A ; z ‘ a . " SARNde Ted vis ecift AQ O¢ SRS } rs ‘ . " ad r - ‘ i. car arly tae time i Ay, id > on ee ap «eet yt ae a , Civil Subpoena.—ror SALE BY THE MASCOT JOB OFFICH, STATESVILLE, (N.C. personally to appe the Court Plaintiff _ Defendant ___ TN ESS seats 6 Superior Court, at the ‘P. to be held for our said county at 7 —Meondayia Clerk Superior Court for & tat eu: County Civil Subpoena, Mak ey. c nck 1 ig (7¢} GEA aon | ALY, | ahead of. A sh, Oy flor X& ae 9¢ Civil Subpeena.—ror SALE BY THE MASCOT JOB OFFICE, STATESVILLE, N.C. TATE OF NORTH CAROLINA, personally to mppeer - ert Court, at the next Coygt to be held for our said county at eo rs) oy, of ‘ - . “ Ate, be a on the a Lo Ye, 0 7 next, then.and wD stig nd er to sayin Yalf of FE ett a - in acertaiy Anifoy st Lek Paice to be tried, wKergin ~—Montay tr 4 A/ . . / Clerk Superior Court for a Lk apie _ Civil Subpoena.—ror SALE BY THE MASCOT JOB OFFICK, STATESVILLE, N. C. tS TATE NORTH ‘CAROLINA, Superior Court, at the part Coupéto be held for our said county at the . Sen / . nein , nadia bes onthe LA before said "PH #: and then and there to be tried, AVL no wise omit, under the penalty prescribed by law. - _.__.... », Clerk of our said Court, at office in Semmeasauatian anal A ‘ sei Clerk Supertor Court for L lth A Loinig Plaintiff . . Against AG D2, Civil Subpeena. Y Term, SLU, OFFICE oFr LONG & NICHOLSON, ATTORNEYS AT Law. STATESVILLE, am 4 aut PAU Ue- Lowe Ox ay Aanreceee a4 tah | ace Geers 72 Lx Gaeceberry Dye a herd \ a? wet MbtLed W Go ¥ Civil Subpeena.—ror SALE BY THE MASCOT JOB OFFICE, STATESVILLE, N. C. STATE OF NORTH CAROLINA, Go the Sherttf o YOU ARE HEREBY COMMANDED TO SUM} Z personally to “pes / Wudge of Superior Coyrt, at the negkiCourt te be held for our said county at Re ad Ho Lio ce Lae, ia si 2 Sk al on dhe ’ ag) Lf tak the OF. . RQ Me next, then ther gheatty and the Y th trxgay in behalf of , ina Le oA Se) Taryn 2 then and there to be tried, whffey Plaintiff , and ty prescribed by law. Clerk of our said Court, at office in Clerk Superior Court for hte LLL L oownty j \ - r Plaintiff .. .. Against ‘ Be: | Defendant .. .. Civil Subpoena.—pPrinted and for sale at the LanpMarx Jos Orricx, Statesville, N.C. TATE OF RQRTH CAROLINA To THE SHERIFF O re Dereby Co nded to Summon... az before the Judge of Superior Court, at a Cotrt to be beld for our said county at the Court next, then and there to testify and the4rutb to say in-bebalf of . in a certain controve id Court «snap, y F and there to be tried, wherein inf no wise omit, under the penalty prescribed by law. a , Clerk of our said Court, at office in . County. Plaintiff ? Against Defendant SUBPENA~~~Givil. Celt a pomeea Lersen ¥ Civil Subpeena.—Printed and for salg at the LanpManx Jos Orrive, Statesville, N. C. ATE QE ~. To THE SHERIFF OF 4... A+... wjse omit, under the penalty prescribed by law. , Clerk of our said Court, at office in Clerk Superior Court for | Toulp er Suct Civil Subpcena.—Printed and for sale at the LanpMark Jos Orri-s, Statesville, N.C. SLATE OF NORTHACAROLINA, % To THE SHERIFF OF... ety Wou are Hereby Commanded to Summon... OWS fo pa Aaftes_the next, then and there Neestity and the truth to say in ee 0 , Defendent >... . And'this you shall in no wise omit, under the penalty prescribed by law. . Witness f ‘ lerk of our said Court, at office in Monday after the... Monday in ¢ Superior Court for Chast Against Plaintiff ude AN2-Ee Defendant vil, ‘Answer. caer. = 2g > Fo Oe ik So. * ee ihe piainti?f by his-eese, contribute to his injury? Paling: Bp Atm a” ‘ : * € es C ike @ o-~<+ <4 Bin Ly Cr Licaye | Fan . dkan, g ee ee 2 go lgtenagy Ant Be cose MC) | ~~. ¢ ~~ A oP |Z ee Coed top of THn Feo Ae Px oy he ear 7 Cort a dee hr, (Cet asia dae. | Dewees Goes ete f+ oa G4 | 9 et. 2. emis | | | Hh wig Rae | a linn iaeaAt _ Judgment Against cee final We fe eee cuinpien tei aahies ean Judgment in favor of Wfow's r’s iG OU NO a i Se MO Biicecic Dockoting ex parte ProceeGiage occ. occcs cccococseces conscessces vecesscceess 50 FONG ncnacscace vaciitichcuntindutiots dkdhnbidulididacdtbinlamnbletices a SP int Os ecectccsns) ssetontnseinnsieneste’ ¢ cease guabisepebetatelibh-sndeus Se Mite Indexing Judgment...... 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DP... pd oie wsolhes 2 Sled ee: won MRT ie unge ae ern B j “t BILL OF COSTS.—CIVIL.—Printed and for sale at The Landmark Job Office, Statesville, N. C. 2-1-96-1m. Original Summons. or r_ origin process, (Mpluding all “ names hep ae Mea. Sei sks $1,500 jf c282: BIR PE eh es ‘aie caen Ere pedandnvdceahvbautbles seat IE ie nn 27 ‘ <1 idtusddewhitavivaatcs cae ete he Attachment, Order in WWE Teds dcdvennbeboondocoddhl sdkee duceniioadatenos Injunction’ Order, including Bond and Justification.................. RRP TE Sata’ pessisbochastacelh cecccdesenghchannbies PE IR i alae) ial emadecsadotebeunad agen Gos BAP Hkieesvuiaribasaay dcdbbasees elvcnthvidcacias Subpena, each name........... ones wepoupdeuneethonnhshoes ‘eddainbaden. padba <ceens 1G |} ones. Z £4. eijve saoosdfupeb ones Notifying Solicitor of Removal of Guardian..............0.-..0..00000. EDT star neared cgicaapab seuss. annpithacndines continuance. sbulbnibniedscey Cebeckaiihie, Wucahateadengsbogsanebisanebeld, casopaaaelil 80 ee-0/2) Aenbeees ‘sonphihanewenkas Caveat to a Will, entering and docketing............... .... Hor casees Bi Ti ccadies chdnlltind sac aNOuiis cadens, Hehe kocke Cae ee ee i ie. ae ea 01D. Tbnsisk weses shiiastietbeobete sekdabiaiicesh Affidavit, including Jurat and Certificate .. 00... .......ccce. ceeceoes BG Hi cccsssccou P'ebsipchall conn eckove) tonbsoane MM sical ies sexaeCaacek tha At bes ek oo ledaiasbe Mina ved SO nak Bs sashes Motion, Entry and Record of..d-=.. ry. 4 Sole oPbueiiheses>sene ieeeiin -25 |}...... fe 20 Al ddenbcpenbaabseboie yttecwach ln. AM le spice sine 6c. Aiea aad ME ssa eorerelereeweres (ee ee a (‘#P0D 9g} &@ pax SY) eciso) {0 11t7 cs } | : : : . NORTH CAROLINA, Term, 1902~.. SUPREME COURT. County. JUDGMENT. Soedal on to be argued upon the transcript of the record from the Superior Court of ie County :—upon consideration whereof, this Court is of opinion that there is ——_ error in the record and proceedings of said Superior Court. It is therefore Wh (0 y the Court here, that the opinion of the Court, as delivered by the Honorable D Justice, be certified to the said Superior Court, to the intent that wm Jabal he Pron, And it is considered and adjudged further, that the M_bud ent ab Jaa Y Hyval x the costs of the appeal in this court incurred, 4 J to-wit, the sum Of en... Jd Wy 4OO — dollars (3 JE LE ), and execution issue therefor. A True Copy: Gon f Clerk of the Supreme Court. iaae ¥ ei ake fe , K 180 Ison, Aentiele & turer eo ¥. Ge Lewis’ for eppeliant; e er leew as rE ee 5, i w:3} we ; : 16 ‘vis : ? tt vas ‘fhjured while: In the: Sp toynent of. defendant. ; aig was ordered by: one who had a. right to command him to: aid a& | " “a tire. off an:e erigine, wht ch: tite weighed 800. or.-1,000 pounds : ae be tected red hot to. obtain the ‘expansion anSenser es: to secure ee “ats arog, hit and anjuring hin seriously, e . ve The Jury found-tipon issues submitted to them thet the plaintiff was in- . fired Lg the ‘negligence Of the defendant as alleged inthe complaint, that > the plaintit? ‘aid not ‘by his ‘own negligence contribute to his injury, and “aasessed. tiie plaintiff's damages at $500, The court. submitted over plain. oS sets objection another issue -"Did the plaintiff assume the risk of ine jury. when he aceepied servite of thé defendant?® Pothe ‘submission of this ~ ‘Yasue the plaintifft.excepted, The jury responded “yes” thereto, and by . ‘Peason. of such Pe sponse the judge rendered: a judgment in favor of defend- ant and plaintiff appealed, a The submiasion df the issue as to assumption Of risk was error, the Pk of the ‘jury thereon i imaterial ‘and the plaintitt 1s éntated to © Judgpent: upon the finding upon the other issues. The caseg of Coley ¥, Rai pouty 108 1, C. 584-and same Case on rehearing, 120 N.C, 407, are con- elute of tthe, ‘Those cases have. been cited as authority in Thomas v. ‘© Rat lPond, 129 B.C, “802; Cogde11 V. Railroad, Ibid 808; Ausley v. Tobacco heey 280 H. & 84; ‘Springs: ¥; Rablroad, Ibid 186; besides other cases ae yet this tern. In Qagds11"& case, supra, the point was made and so ruled , poet. the _dudge, unde the aut. hor ity of Coley's case, properly refused to subat, at 8 ue ead asmiaption of risk when the canse of action was for Fathi, _mistedned tn ‘the course of Ais employment by a railroad employee. ne ne Act patified 23 ‘Pebruay, 1897 (printed for somé reason not yet + wubhde ae Gh, x in ‘the Private Lowa, -of that in 1s as follows: : ee. b at: ani ‘sorvant.. ‘or “onployee’ o¥ any rabitosd ‘oompary “oper ‘ BS ating” fin: ce State “who bail’ suffer injury. to his person, or the pe son= e ok Topresém ative: of any. such, employee, who shall have. suffered deat, th the courée: Of. his: services or employment: with eat company, by the negii=" ‘ genes, ‘Gapelesane ss ‘or. theompe tency of any other: servant, employee, of cot | | of. the company, or by any defect’ in thé ‘echinery, ways or appliances. of. _ tthe eompsiay, shall be.entitied to maintain sn sotion against: such company. : =a Sect ton 2. ’ Thab- any: eontract or. agreement, expPessed or implied, nade > by an e1iplozee of said company to waive: the ben erit of the atprecwas Set = a tion shal “be null and void.” ya ~* ; In Coley v. Railroad, 128 N.C. 584, - Purches, Rs Je ahtat: an able. wk full -digéussion of the above statute and uth bearing upon the doctrine of. Assuuption of Risk, sus (at page 541); “The greater part of the: record, . consisting of prayers for instruction and the jadpe*s charge, is predtented.’ upon the first issue, the Assumption of Riak which are gliminabed by the view. we have taken of the case...... The prayers of the defendant tainly, if not. all of them, are addressed to the assumption of risk, and it ig not necessary for us to discuss them, after taking this view of the Act of 1897." After full argoment, and most careful consideration on rehearing, the court reaffirmed the view expressed by the Chief Justice. ~ Douglas, ‘de say. ing (page’409) that: our statute is “an unconditional abrogation ‘of the kin dred. dost rineof Fellow Servant and Assumption of Bisk as applied to rail- road companies", and on page 410, "We have therefore no hesitation in hold~ . oe ad Jing the Act of February 1807 valid in its entirety, and that. it deprives. se . eli patlroad compatios operating an-this State of the defense of ssstmp> ‘ti dh of risk, whether resting in cont raef, express or implied, and wheth- be “er pleaded directly or under the doctrine of Re llow Servant.” ©. i Ng 1%, fio case has ever been more thoroughly argied and mote carefully. 3 ane * = de 11 be rately considered thant Coley ¥. Ralirowd. It waa Spat se pe Ps: SP by able counsel, three times; first at September term, 1900 and was carried over under an advisari to the Spring term, 1901, when it was reargued leave of the court, the opinion affirming Judge Hoke, who tried the case being written by Chief Justice Furches. It was again argued on rehear at Fall term, 1901, the court reaffirming its former decision in a well considered opinion by Mr. Justice Douglas. And these opinions have since been approved in several cases, as already cited, It was suggested here that the Act applied only-to employees running the trains, but the language of the statute is both comprehensive and explicit, It embraces injuries sustained by many. servant or employee of any railway company.....in the course of his services or employment with said c pany ." ‘The plaintiff was an employee and was injured in the oourse of his service or employment. The issue and finding thereon as to assumption of risk being irrelevant and immaterial, the cause must be cent back with directions to enter judg- ment in favor of the plaintiff in accordance with the findings upon the other isaues. WWricy, Monee at Me lim REVERSED, Grae >» ¢ Superior Court, ¥ Case on Appeatk: to Supreme ~ Court, tendered by appellé ant's counsel, This {@ &°Sivil ection for mental anguish alleged to have been bs suffered by the plaintiff for the alleged negligent delivery of 2 telegram set out in the record, tried before Garland S. Ferguson, Judge, and £ Court: jury, at the July Term, 1906, of Iredell Superior : P The following is the evidence in the case: 7 . eit . . xs re jet see “ ‘ a te Charles D. Mott, oye | EVIDENCE. W. U. Telegraph Co., : Plaintiff offers in evidence, -- “Summons, bearing date July 3, 1905; ‘Paragraph Second of the Complaint -- "That on the 22nd fey of June, 1906, Delia Young, a sister in lew of the plaintiff, delivered to the agent of the defendant, at VYinston-Salem, N. C., to be sent to Chas. Mott, at Elmwood, N. C., for the use and benefit of the ssid Chas. Mott, the plaintiff, in this ection, the following telegraph message: | Winston-Salem, Fr. ¢ To Chas. liott, Elmwood, KF. C. "T. Li. Youmg killed in ”. Va., funeral here three o'clock. Cen you come?" Delia Young. Thet the time of the delivery of said message to the defendant it wes made known to the agent of the defendant, at Yinston-Salen, thet ¥. M. Young was a brother to the plaintiff in this action.” That portion of the Second Paragmphof the Answer commencing with the word "in" and ending with the word “complaint” -- "In answer to : the second paragraph of the complaint, the. defendant admits that on the 22nd day of June, 1905, Delia Young delivered to the agent of the defendant et Yinston-Salem, North Caroline, e telegram to be sent to Charles PD. Mott of the tenor set out in the. ,8econd para- IF, f, 2% graph of the complaint. ’ Paragraph Third of the Complaint -- "That in consideration of the sending of said message over the wires of the said Company, said cor- poration, was paid the regular charges therefor, and the additional charge required for & special delivery of said message to the plain- tiff, Chas. Mott.” That portion of the Third Parnograph of the ‘nswer sommencing with the word “in” an& ending with the word "mesg@age"-- "In answer to tithe the third 1 porégreph of the compleint, the defendant admits that: said Delia Young paid to the defendant the sum of 25¢, the reguier,, ea oet *'. for transmitting said message”. “hy Paragraph Fourth of the Compleimt -- "That said message, 4s above set forth, was received at Elmwood, me C., at the office of said Company, on the 22nd day of June, 1905, et 8:56 A. Ms, but wes ol- lowed, ‘Wecouse of the gross negligence of thet Pompany, to remain un- “delivered until the only train that plaintiff could have gone upon te Winston, had. lef* said station of Elhwood. That: begauvse of the carelessness an& @ross negligence of the defendant in not delivering said message as was its duty to do, promptly, the plaintiff wes un- able to go to the funeral of hfs brother, as he could and would have done, had said message been delivered as required by law". And thet portion of theFourth Paragraph of the answer commencing with the word "in" ond ending with the figures "1905" --"In answer to the fourth paragraph of the complaint, the defendant admits thet seid message was received at its office in Bilmwood, North Carolina, at 8-55 A. M. on the 22 of June, 1905". Paragraph Fifth of the Complaint -- "That at the time of the recep- tion of said message at Elmwood, the operator and agent of the de- fendent knew where the plaintiff lived, end negligently failed to deliver said message as he should have done -- but upon plaintiff's inguiry about the non-delivery thereof, the said agent of the defend- ant, abused, villified and cursed about plaintiff's declared inten- tion of investigating the defendent'’® negligent conduct in failing to deliver said message, threatefied to heve plaintiff and his minor Sgon AisenKe get from their-ampRsynent ené hes sotuslly hed pleintift:s. son dischargea, thereby depriving pleimtiff of the income to ence he was entitled and which he was receiving from said employment of his said son”. | That portion of the Fifth Paragraph of. the AnBwer commencing with the word "the" and ending with the word "Elmwood" -- "The defendant efimite that ite agent at Elmwood, North Carelinsa, knew the plaintiff? lived about one mile from Flmwooé.” - Ls ie: ce Objection by defendant to theintroduction of the sentence offered by the plsintiff, unless the whole sentence relating to the subject matter is read to the jury, the Court rules that the plein- tiff may introduce the matter offered without introducing the other, ‘put rules that the defendant may offer the whole of said sentence if it chooses to do so. DEFENDANT EXCEPTS.™ Ercophonr A*/. DELIA YOUNG: Mr. Lewis: IT live in Winston, N. C. I was Living et Gary, ¥. Va., at | the time of my husband's, William, Young, “death, but I was in Win- ston on the 22 of June, 1905. My husband was killed in Gary in & mine by some slate falling on him, and I went to. Winston, where my family lived on the 21 of June, hna got there Yedmesday night, and sent this telegram on the 22. I know Charles Mott. He is ny hasband’s brother. I pent the telegram in question e.little after 8 o'clock by Wm. Franklin Hoosier, who.paid for the message. I sent 27¢ to the telegraph office. At this time my husband was at the undertaker's shop, and 1 held the sorpes over until after 3 o'- Clock, when the last mail come in from Charlotte, in order to get Charles Mott there to see him, as he ied not seen him in @ good while. The train was late I think. It is due ht 2:15 or 2:30, but it is hardly ever on time, and it was near 2 o'clock when it come in that day. I had my husband buried after the train came in, and Charles was not on it. Cross-examined: ? Mr. Turner: The train dif not ogme that day fret Barber's Junotigp until something near 3 o'clock. It is due at 2:15 or 2:30, and was about 3-4 of an hour late. I live on Chestuut Street, Fries’ Alley, near the Colored Baptist Churoh in Winston, about 1-4 of a mile from the depot, back East from Salem, and about 3-4 of a mile from the tel- egraph office. I was not living there at thy time my husband was killed, but my mother wae and I was st’ her house, at this street I told you I was living at, on the 22 of June, 1905. I sent this ote 4? tern Bp office something after 8 o ' Clock by Wm. Franklin Hoosier. WILLIAM ‘FR iI} HO ee ; ‘ aa jt’ Me. Cqldwell: I live in Winston now, but have lived in Iredell County, at “Belmont. 7 indw the plaintiff and gow where:he lived on’ June 22, 1905, and it was ‘dbout a mile from Piawot: I delivered a message to the telegraph office in Winston from Delia Young to Charles Mott & little after 7 o'clock on June 22, 1905. I oan read, but tT case whose hand-writing this is (referring to message received by plain- tiff.) (Message read in evidence). This is the message I took to the Winston office, and I paid the operator Bg for it. -.I told the operator when I delivered the message te. hin thet this man lived about one mile: above Elmvood depot, and that I t aca just where he lived -- the nile post is just in front of his house. I said his brother is “killed and “ want to send this message, and I want to know if there will be any extra wharges, I said if there is we are willing to pay them. I asked him will there be any extra charges? He said No, 27¢ is sufficient. I knew that Mott cooked on the train, end + did not know whether he was there or sot. Bo I asked him, if he sent an answer back whether he conga some or not, what time we could hear from him, and he told me what time, but I dout remember exactly what time, but it was early enough so we would/ know con- Gerning the funeral. I told him that if there was /anything extra besides the 277 I would pay it, and he said there would be nothing extra. I t@B@ him the dead man was 2 brother of Charles, and that he lived a mile above the depot. I said we wanted him to get the message, and if there were any extra charges we were willing to pay them. There was s little delay in the funeral, the train being late we held the funeral until the train came, but Chagiles was not on the train, and we went ahead and buried him. 8s- : Ds Mr. Turner: I live in Winstdn now, but was reised at Belmont. Have been a. ; but ' pn r.. 1 at od ™S wae ore einee stober %, two years ego. I am no kin to either Delia Young or Charles Mott, but I lived just across the street from wha her mother lived on June 22. She gave me $1.00 to pay - the charges on this message. I went to the office between 7 and 8 “Sse telock. It was not 8 o'clock, because . 4id not know what time ~ the office opened, and after * got there I learned that it did no$¥? open until 8 o'clock and 1 stayed there. Z. did not know the. opera- tor personally, hed not been there long. I did not know the name of the man I haaicea to. I dont think I would how him if + sew him,——___ never paid that much attention to him. I-do not know Mr. Tyse, the operator. I told whoever I talked to that Charles lived one mile from Elmwood; sha + asked if there woulda béany extre charges, so I could give the lady satisfaction about it,. and t went to her moth- er's and told her thet I patd 27¢ charges;-and that there would be no extra charges. I 4414 not know whether there wes a telegraph office at Elmwood, and * asked him sbout thet first. I know the place 211 right, as I was raised right above there. I told him I wanted the telegram sent, and if there were any extra charges on it, I wanted to pay then. I told him I knew the train stopped at Eln- wood, but I did not know whether there was = telegraph office there. I had heard there was a corporation limit in places, and if it is outside of the corporation it costs moge. I have been hearing that ever since + was a child. Réised gown ‘herd at Belmont, and remember them bringing telegrams to Belmont, and they charged more for bring- ing them outside of the sorporation. 4 * Re-direct: . , ; Mr. Caldwehiy ’ I waited at the office until the operator came and opened up the office, end stood and looked at him fix up some little tables end things, and then delivered the message to him. I dont know his name, sia would not know him now if | saw him, Plaintiff offers in evidence messarse in question. CHARLES D. MOTT, PLAINTIFF: Mr. Caldwell: I am’ '63"yoars 01d. About the middle part of my life I have divides between Concord, Cabarrus County, Charlotte, Mecklenburg | County, and Statesville, Iredell Cotnty. I live one mile from Elumooa, Iredell County now. I knew the agent of the telegraph Company at Elmwood on June 22, 1905, ane he knew me and knew where E lived. I was et home on that day. I haa been off at work for some time and was at home sick; got relief end came home and hed been lying around there. No. 11 paesed oe Elmwood in the NOTHING ...040 L dont know the exact minute, “somewhere about 9 O8- Clock then. It stopped there. I¢t'is about 8 miles from Elmwood “to Statesville, ana No. 1f“also atops* there. No. 30 goes from States- _, Ville to Salisbury, but does not stop et Elmwood. A person at Eln- wood who wished to go to Cleveland or Barber's Junction or Winston would get on No. 11 at Elmwood and meet No. 30 at Statesville. That is the course you would have to ‘eae’ by Weel 3 No, 50 stops at Barber's Junction, and confects with No. 28 going from Charlotte to Vinston. I received this message at 11:20 at home. I dont know exactly what time No, 30 passed Stptesville, but it passed Elmvood 2 few minutes before 11 O'clock, ena I had not received the messeaze at that time. W. M. Young was my SRother. When I received the message I read it to my wife and I said I must go and commenced dressing right away, and I sent my little boy across over there on his whee]. to Garner's,a near neighbor's, to see if he could get his bugey. I guess he was gomp about igs or 20 minutes, “hen he came back I was dressed and had on everything but my coat. I could not get the ‘nesy so I moun ted the wheel that he had and went on to ¥i1n- wood. ty boy brought me thé nesshwe. I sent him down there that morning to meet No, 11.~. When. t goteto Elmwood 1. gaw Mr, Aiken, the operator there,.and-Mr. Steel. ~I asked Mr. Aiken what time it was, and if he thought I could catch thet train at Berber's Junction going to Wineton? He said it is 5 minutes to 12; looks like you Ought to make it, and I got on my wheel and out I pitched. I went by the big road by Clevelend, endeavoring to catch No. 28. I went ad. fast as I could. The roads were very rough, end when I got down abe ~ we ‘Sea ¥ in the Third Creek bottoms 4 could not wks it on the wheel, and had to walk about two milés up the i218" ana through the bottom, and before Lgot to Barber's Junctign No. 50 passed me at Cleveland, two miles from Barber's Junction. Tt was late. I did not cet the message in tine to’ take To. 11 Weot.” It was late; it passed me at Cleveland. The Winston train wes also inté, I got near enough to dee both of them leaving the station. at Barker's Junction, and there was no*other way for me to go. I» ‘gent a Wp iegran to my sister from pe that I could not make it; telegran delayed, and I could not make it. I came on back to Dlmvood on my wheel then. It is said to be 8 miles from Elmwood to Barber's Junction by the big road, so T had ridden 16 miles on my bicycle to bring me back to Elmwood. 4. I saw tir. Siken after that, an? asked him about it, and ~ said some- body is responsible, ***** cross-examined: Mr. Turner: I live one atte fron 7 Tlgwoot, which is just a Little: v village of about 50 inhabitants, but I dont know whether it is incorporated or not. I reckon sbout a dozen families th®re. No. 30 going from ‘sheville to Salisbury does not stop at Tlmwood unless special re- guest is made by some of the ocitisens; thet is the Vestibule, and it foes not stop at small places. I @ont remember what time the train passed going from Salisbury to Jsheville that morning, but I think somewhere about 9 o'clock. I dont think it was late. I think it was close about on time. Ny son, Oscar, \that brought me the message was between 15 and 16. 4. Did he tell you whe gave him the message? Objection by the plaintiff. Over-ruled. EXCEPTION, Didnt he tell you thst Mr. Aiken geve him the message? 4A. Yes sir, and that he brought it from Mr. Aiken to me on his wheel, an” that he 414 not delay on the way, but came straight from Flmvooa on the wheel, Take him about 5 minutes, »8 he was 4 very good rider, Yrom the time he gave it to him, he could have made it in 5 minutes. About that time. It would not take him longer than 5 minutes to ride oa - to my Place | from Elmwood. Splendid road in the Summer. ‘*S soon r as + reasived. the message | read it to my wife, and told her I must. sy get ready because + would have to go to Barber" s Jukction to get ‘on, end i : aia not hurry + would not make it, and 1: éommenced put- ting on ny clothes right away. I sent ny boy” over to Garner's, but I dont know ‘euuatis how far he lives from me, but I dont think it was much over a mile if any. “y boy went on his wheel until he got to a gulley, ana he had to leave his wheel on this side. He was not gone over 15 or 20 minutes. ‘hen he returned I got on the wheel and went to “lmwood, I dont think it took me over 5 minutes, ana + dont reckon I remained there over,» half minute. I aid not stop at Long's store going, but did stop coming beck. Then 1. got ~to the depot I asked Mir. Aiken what time it was, and he told me 5 “to 12, and 1 mounted my wheel and went on. | Both trains were late thet morning. They met at Barber's Junction, and I knew both were boufld to be late. I did not have my watch, but the operator at *ln- wood tola me what time it was. ~ It was 20 minutes past one when I cot to Barber's Junction. I think the train is due to leave there for Tinston somewhere near 12 o'clock. “Tt was between 12 and l,. I found out what time it passed after I sot there. I could not ride that distance in an hour, but did ride it in an hour and 20 minutes and over-done myself from i%, I =m not sure about the min- utes, but it hurt me and + aint dver it yet. I senta telegram to my sister and then returned to Fimwood. I did not talk to the operator there right st that time «<1 think I said something as I passed Mr. Long's store; some one, in ther@ @aid something to me. I was at home several days after 4 got back 1 reckon. I 414 not come to Statesville that aay, but I think I was hére in about a week or so after that; some few days; anyhow. 4 did not come that day y ° I dont think I came the next day. I have been to see my sister- in-law, but dia not go the next day. rt had been about 7 or 8B years or more than that since I had seen my brother. He worked in the cosl regions snd traveled around. He has not been living close to me. I aia not know where he was at 211 times until after he got ‘. married. I went to see — until he moved his family to the coal regions. ve: -8- ‘ . . * ig sometimes got letters from him ané sometimes wrote to him--when- ‘ever I learned where he was or when he would write to me. Te thought “enough of each other to write once a year. : T had many suite. I believe you pleddall I ever tad. I never sued the railroad for an old mule or horse, either. They treated me nicé. They sent = man to see me and paid for it, I did not bringve suit for the killing of the same horse, they came back and 5ada. he. I did have two claims bout the same horse. I have been a cook and waiterfor the railroad off and on for 20 years; sometimes cook 311 the year. The last job I had I worked for Mr. T. ¥. Brown in Salisbury, this year. Stayed with him over two months, I have been at home a good deal sick in the bed, under the care of doctors. I dont know how much I cooked last year. I was cooking when Mr. Aiken had me discharged. He told me he was going to do tt. He told me he was going to discharge my boy and 414 do it. When + am not at work a- way from home I am working at home. ‘Chew me a wa black or white that will say he ever saw me gambling. I aFeax played a card in my life. If you will bring 2 man up to me that ever saw me gambling I will quit. My son thet brought me the message in dead. Re-direct: Mr. Caldwell: Have to cross a creek in going from Flmwood to Barber's Junc- tion. I have cooked in Statesville. I do not gamble. Re-cross: Villiam Young is a half brother to me on my mother's side. lig. C. WW. CONNER: Mr. Caldwell: I live in Statesville and am Chief of Police here. Have known the plaintiff 10 years I suppose. I think I know his general char- acter. It is good. Cross-examined: Mr. Turner: I dont know that he idles = good deal of his time. I dont know that he has the reputation of being 9 mereidler and dead-beat in politics ani everything else. I dont know whether he has employment =Qa a | * * aha the time or not. I ‘know thet he cooked here in Statesville, abA hes been cooking for the railroad. He does not stand around here doing nothing. ie have seen him cooking here. I never heard that he tries to Live. bys. wits, and do as little work ss possible. MR. J. W. C. LONG : Nr. Caldwell: I am the Post Master at Statesville, nd have known the, plein- tiff for bout 18 years. I think I know his general oheracter, and it is good. Crogs-examined: ir. 4rmfield: I have never heard of it being bad. He always behaves, himself an@ is sober. I have never heard him called a dead beat. 1 dgnt know anything about that. I have never seen him working much. I have met him several times myself in time, and I found him pretty square -- a smart darkey. I dont know that he hes the teputation of living more by his wits than his industry. .He is a negro that I never fancied, but I have never known snything amiss about hin. I dont know that I know the general estimate in which he is hel4@ in this community. His character as far as I know is boa. I have never known him to do a dirty trick, and I have known him a long time. Mr. M. C. WILLIAMS: Mr. Caldwell: I am the Register of Deeds for Iredell County, and know the plaintiff. I think I know his general character. It is good. Cross-examined: Nr. Armfield: I really dont know that I know what the people generally think about hin. I know the community in which he lives, and I have never heard anything against the colored man. I think I know the general estimate in which he is held. Mr, R, FR. ARMPIBLD: Mr. Caldwell: I live in Statesville and am Deputy Clerk to the Negister of Deeds end Clerk of the Court. I have known the plaintiff 15 or 18 yeers, and know his general character. 1 think it is good, A Ou Cross-exam xamined: Ai Re oA IS: .,, Mar. Armfield: ae ‘dont mow, that. ‘I Iniow | the. general estimate in whieh the : plaintiff is held in the community in which he lives, as I live in Statesville, and he at Elmwood. IT kmow he has worked for mea time or two in the hotel. 1 never heurd of his living by his wits, rather then by industry. EGA INI eP FENVVATT' Ss BVID ESB C's. tir. 2. M. AXKEN: Mr. Armfield: I was the manager of the 7. U. Tel. Co, .at Slmwood, MN. C., at the time of this transaction, and was also agent for the Southern Railway. Co, and the Southern Express Co., and received the message in question. This, looks very much like nyvhand-writing, if it is not, (referring to message offered in evidence.) I received the message at 6:56 a, Me The trein going from Salisbury to Asheville pessed Elmwood st 8:58 a. m., 3 minutes after I received this mes- sage. I knew that the plaintiff lived one mile from the office. This is the book of instructions and information for the managers of the 7. U. Tel. Co. Defendant offers in evidence Rule No. 50, as follows: "Mes- Sages will’ be delivered free within 2 radins of one-half mile from the office in any city or town of less than 5,000 inhabitants, and within a redius of one mile from the office in any city or town of 5,000 or more inhabitants. Beyont these iimits only the actual cost of the delivery service will be collected; the manager will, how- ever, see that Buch cost is as reasohable as possible” ‘That is one of the rules of the Company. Elmwood is a very mall place -~ less than 5,090 inhabitents, so the free delivery limits were one-half mile from the office in each direction. Af- ter the message was received, I haa Y meet “hg. paesenger train the first thing, 68 it was due, and. just as soon a8 it passed I took the -ll- Wx eo eo * ot oe ey _ United Stotes 0 the office, and inyuired for Charles Mott or any be ‘bt his people, by whom or to whom, I could deliver the m message, «nd “not finding then in the plece, I returned to the office, ané@ sent ® service message: thet is, 2 free nessege to the office at Vinston- Salem, notifying them that Charles D, Mott lived beyon# the free de- . livery limits, ond thet itewould cost R55! to ieliver it. This mes- ®82ge was sent at 9:21. This is a copy of the service message. ° There is no. direct wire from “lmo0o0éd to Yinston that We mse a8 i we 7. U. Tel.” Co. wire, } (Service message read in evitauene In sending ® message from “lmvood to Vinston on thie occasion we were compelled to send it by Charlotte, the relay office. I received o service message from “inston guaranteeing the charges of e5¢ at li:il a. m. 4% 10:30 i@ delivered the message to Charles Mott's son, Ostvar, or Thurnép ? “ot, agit knew him then, He came up on his wheel cné I delivered the Weseace to him in. the pres- ence of Ur. H. T. Steele. Itold hi it was an important message, end esked, hin if he wss going Airectiiy home? Ee said he was, and i asked him if he would take it and deliver it to his father and he said he would, and he took it and started towards home. I dont remember the condition of the roads @t the time, but I would give him ten minutes to make it on bis. bigycle. Could heve ridden it easily myself. The train thet gdéea’ by Barber's Junction from Mooresville and other points to Yinston was scheduled to pass Nar- ber's Junction on that day at 18342. Charles Mott came to the of- fice at 11:52, ae*well as 4 renember.. a thigk that is the time I told him it was. He neken me what tine the trein was due at Bar- ber's Junction, end if I thought he, gould make it in time to catch thet train. I told him I thought he coulda, ac it was due at 12:42. It is 7 miles from Flmwood to Barber's Junction, and 1 mile from Mott's to Elmwood, would meke it 6 miles. Garner lives one mile North of Mott's. If Mott's son nolivene nessscge to him in 10 or 15 or even 20 minutes after + delivere@ it to him he certsin- iy could have gone to Barber's Juggtion in time to catch that train. a, ears it to him at 10:70, and if he had déliveret it to his fether , out sO r ~ in 15 minutes, make 10;45, thet would have allowed him .1 hour end 57 minutes in which to ride to Barber's Junction to catch that train. I have seer ott ride a ladies’ whéel, which he has. lr. Steele arid deeel? timed Nott for neerly 2 ‘mile that we coulé see him as he le?t the office at Elmwood, «nd he left the office at 11:55, and just before the clock struck 12, a minut® or so before that, he > had neérly made his first mile; we gave himi@nother minute, ent it ‘woulda make 5 minutes for the first. mile. Re remained in the office there at Elmwood something like 2 or 2. .mimutes. Cross-examined: ' Mr. Caldwell: I have been over the big road from Nlmwood to Cleveland, and I consider the last mile the best for riding a wheel, There is a short adistence in the creek botteme where yo coulé ride a wheel, A good many hilis in there. I have never asset over that road be- tween Elmwood and Cleveland, but what ANeould set siens. I have never been over it on » bicycle. I received a reply to the ser- vice nisbdee nt 11:11, guaranteeing the extzé pay. It is out anty to deliver a meneage as soon es possible, end 1 delivered this one at the first opportunity. I held it until 10:30 for a guarantee of the delivery charges. I never got that extra quarter that was peid. IT dont know whether or not the Company received it. I telegraphed to them that it would take thet “ deliver it, and ther telegraph back to me that it was paid, or rather I gota message tekling me to deliver that message, but I had delivered it before receiving that message. The service message informed ne that the charges hed been satisfactorily arranged. I tont-knonjwhat ,be dane of that mon- ey, as * did not handle any of thé tolle, If it was ever paid to Mott or hia boy I.do not know it, I knew-where Mott live@, and I knew him, and + considered this @'death.méssage. I have never seen the original message filed at Winston. I sent the service mes- Sage signed "Elmwood". This is a copy st the time it was received in Wineton-Selem. I did not send the né@mage direct to Vinston-Salem, that is e copy. 9:50 is the time it was recéjyed in Winston-Salem, -13- I kept records, but. . have sent them in to the Company . That mes- sage. left Elmwood at 'y 21, and | am positive ‘of ite “I had to neet No. a an@ it usually stands at Barnwood 1-minute. I took the msil to the post office. I dont remember the exact @istance, nearly 290 yards, at lir. Long's store... I came right back. The train was not Tent on time, but I could not say how late it was. It stopped. the. ‘usust. length of time. The message shows the time that 1 took to meet the train and take the oil to Phe post office-- the time between the time it was received, and the service nessage was sent. T am not at Elmwood ‘ROW -I have been rempved,- but. not. for derelic- tion of duty. ft peractiatly requested to be removed,on account of my health. I ama heelthy man, but: * wanted to get out of the chills. I had chilis while there. I left then July 4th, 9 1ittle ovér.8 month ago. I cannot tell you how nea arly No. 11 was on time that morning. I have not my records with 10 {never thought about these questions being asked me. I dont thilak that ic in my statement to the Company. T have not sen the e fatement since 1 made it. I am trying to corroborate tnd statement. ap near eas I know the truth. There was no feeling between Mott and me et that time that I know of. I did not tell Mott tha® 2 his oy haf not come along there ne never would have gotten the message. I cot the book of rules end read them to him and tried % expisint it to him. My rules were right there on file. I used fper more Shea anybody else. I did not tell Mott when he came ovér there to see me "thet he need not telk so ebout it; that if I had? taotidben your boy eEapeneces would heve been lying here yet”. I did tell. him that the’ rules aid not require me to deliver it begond a half ile. I da’ wok @o so except in & case like this when I ¢an deliver it to a person going in that direction, who will promise faithfully to delgver it. I flo deliver them outside of this distance by mail sometimes. If I had a death message for Mr. Arey, who lives outhtae of this limit, I would send 4t to him if I could. I received a death message, or 2 sickness message, for Mr. Arey, end + proposed to deliver it just like 4 aia this one, for 25¢ the charges. Ya ‘send them to people when we have , | alte PY an opportunt ty, just as I dia in this case. If the person that 3 message °is addressed to is well itgown, ang “We think he rs reliable we sometimes deliver the message and take chances “OR getting the charges from the sendee. If he was absolutely reliable, I would send “44 to him. We receive compensation from each of these companies, | the: ¥. U. Tel. Co., the’ Southern nyt hae. , ana tiie Southern Ex. Go. “fhe W. U. Tel. Co, wiseived tolls from messages of this kind. The Raiiwey, ‘Ce. nox’ the Ex. Co. hadiiothingto: do with it that.I-know. of. G mS ke | 3 ir. S. woryse : Mr. Turner: I am thw moheger of the W. U. Tel. Co. at Winston-Salem, This nevedge was received at my oftiog --(message sent to Mott at Elmwood.) It is the original message. This is the paper upon which it wae reéeived, 29¢ marked on it. There sre marks on here that were pat on after it was filed, 25y delivery. kfter this message was gent, a little later, we received 2 service message, asking whether we would guarantee @5¢ for delivery charges, and those charges were paid. I then entered this amount on the message in orfer to make it easier for me in entering these messages’ on my books. the next day. This is my hand-writing. The service message was reéeived at 9:57, and * sent the message to the nseidien of the ofiginat telegram, sdvising them that 2by would have to be paid. I think I wired back to Elmprood at:11:05. I cannot say exactly how soon after tgot the 257 guarentee. I'.aAont know how much time it took the messenger to make his trip and locate the party. Then I had to write this service message, ang secure an opportunity on the wire to send it. The wire is not monopolized by one or two offices. Several offices on. the wire: anad-you have to take your turn in ex- changing messages. This service message was transmitted to Charl- otte, the relay office, and it was transferred by Charlotte to Eln- wood on another wire. I dont remenbef how many messages were re- ceived at Vinston this day over this line. This record shows we sent 25 messages to Charlotte ani. received 22 from there on that ‘day, 1 was in the office when this message was first delivered -15- “% ue rs | a Che ow ee & Mr Br ts Shere, and a11 =e time’ tt was under consideration. I dont re- “mombae this. iat on the stand, or the. party. who delivered it. I dia not hear anything about there being any ‘extra charges . Ion” fomiliar with the free délivery limits at Elmwood, but do not now vwhere Charles Mott lives. " “hen | received the original message, I did not receive any information anes where he lived. Upon information that a man lived beyond the free delivery limits, ! would tell-a party that the extra charges would be the actusl cost of delivery beyond the free delivery limits. Cross-examined: Mr. Caldwell: I am not the man to whom Hoosier delivered the message. I do not know what was said between the man to whom the message was delivered and the colored man, That man is now working for the Southern Railway Co. He is not here. I wig at the counter when this message Was delivered, an@ cant remember what passed between then. 2 Ur. H. T,. SSBELE: lir. Armfield: I was at the telegraph office st Flmmood on June 22, 1905, when Oscar Mott was there, 2bout 10;30 o'clock. I went down to the train at 10;30. The local freight had passed, and I waa ex~ pecting & losd of lumber. Mr, Jiken said, Yait e minute, here comes Oscar Mott. =I have a message I want to deliver to him. He went out and stopped him and delivered the message to him. I” kiow that Charlies Mott lives one mile from Flmwood. It wenld take Oscar Mott anywhere from 5 to 15 minutes to\go to his father's house from the office. Walk it in 15 or 20 agsnheis and he had a bicycle, 80 I think he could travel it in 5 or 10 minutes. It is 8 miles from Mott's to Barber's Junction. Garner lives, if you go across the Hills an@ hollows, one mile from Mott's, but if you go by the road, 1 1-2 miles. It is about due North from Mott" 8, The train seem Mog fesville to Winston passed Barber's tusheton about 12:40 p. me; ané is generally on time. If the message was delivered to him in 16 minutes afterstt wes delivered to his son, 10:45, Hé could have ’ _ el6- - walked to Barber's Junction in 2 hours. I have walked it in that _— thme, and he could have gone on a& bicycle ecsily in an hour. I. saw Charles Mott: that day a few minutes before 12 0 'olock, he came to the station to inquire of Mr.,4iken what time thet train was due at Barber's Junction. He told him, and he asked if he thought he x ogula make it, and he said he thought he could, and he got on his wheel and started off. I do not kwow whether he stopped before he came to the office to inquire 28 to the schedule of the train or not. Mr, J. CHAP TURNER: ba Ur. Armffeqa: I know where Garner lives, and the nearest way there from Mott's is 1800 yards, I stepped it. . I mate it in 18 minutes, going there. It is about a mile from Matt's house to the telegraph office in Eluwooa. 4ccording to the general sgrenaiem in the neighborhood it is 5 miles from Flmvood to Cleveland, and 2 miles from Cleveland to Barber's Junction, or 8 miles from Mott's, I have known Mott from 15 to 18 years. I think I kmop his gefieral chsrracter. I would class him es s dead beat. That is what I think the people generally would classify him as. Cross+examined: “ ir. Caldwell: The reason I happened to be stepping from Charles’ over to Garner's was, because this suit got up, anf they got to making fun of the idea of Charles Mott laying around and doing nothing as much as he aia, and they got up s digpute -- I told them I believed to go the nearest way it would not. be over a mile, and H. T. Steele said it was o milé and o half, anda“ seid to satisfy myself, we would go and step it, and it was 1800 yards to within 10 feet of Charles’ house, - 1700 and some odd yards in 4 mile. I am by Charles Mott as I would be by any other dead beat. He does not beg that I know of. I haye heard of“him doing might near what I would term ptealing. I have been Foreman of tie Grand Jury here in this County, and I did not reper’ bin, I have been over. mere (in that community) four years next Didguder, and I expect he has possibly worked 6 months in all during that time. I think he cooked oy something like 3 or 4 t 6 last he He stayed at home for a week or two sfter that. I “Aoit know. thet the telegram had anything to do with his being re- ‘ported by the Eluwood agency. I know Mr. Aiken took & hand in re- porting him, because he was there making threats as to the Southern - Railway Company, and not this case at all. “I heard that Mr. Aiiken told Mott if he 71a not withdraw this suit, he would have him @is- cherged. I suppose he was @ischsrged by the “ompany. He and his son had been discharged before the delivery of this messege,- snd he had a boy on duty down there not long ago thet -got killed by disoheying the orders of the railroad Company. I suppose the telegraph company put this message in the hands of Mott's son as its agent. I have not taken very gmch interest in this matter. I did not knéw anything about the day he got the message, and I have not inquired as to the particulard‘of it either. Re-direct: Y. Mr. Armfield: One Sunday morning down thers there was 2 negro thet they clain- ed had killed another negro, sacroas there abdut fmity, and he was thought. to be about Elmwood, and the Depauieics Rowan deputized me to go with him, and we were waiting for this train to come to see whgther he would gather about there or pot “eer, Aiken said to Mott, You step out here **** From the ofher conversation Mott was standing out there cussing and denecning a man for talking: to his minor son vine tead of coming to him and talking, and Mr. Aiken walked up to him and said if you have anything fo say about me, say 1% to me right now or get off of this ground, you cannot otey here uid talk abont me, is mare “Aiken called mg attention to“ it, and asked me to walk out there and hear what it was. HARRISON BENSON, witness for the plaintiff, examined by MR Caldwell: * I live in Vinston. Delia Young is my sister. I was present when, Hoosier delivered this message at the telegraph office if Tin- ston. Ee gaid he wanted ,to send a telegram “to Elmwood, I. C., to -18- eae f : eS yt . rent Charles Mott, and told him he lived one mile from the station. Then he asked him how much would he charge, anf he Looked over it and said 29¢, and then he sent a. telegram that come back a little after 9 O'clock. -He seid there would be no extrs charges to deliver it and he said it at the time of the delivery of the message to hin. I have no interest in this controversy. Cross-examined: Mr. Turner: I dont know exactly what time this other message ceme back, but © little after 9 O’clock, aking for a guarantee of the delivery charges, and then we paid it. My @ister was at my mother's, about 3-4 of a mile from the office. "Ye paid the messenger boy the extra charge of the message, and gave him the information where Mott liv- ed. He told us ti would be 25¢ and we paid the 25;’, and then the boy went on back. Re-direct: Nr. Caldwell: When I first went to the office wi Hoosier we told the oper- ator that Mott lived a mile from the station et “lnwood, and then told him again, &md-we told hin if there were any extra cherges we would psy it. Defendant offers in evidence the following rule: "liessages will be delivered free within the established free delivery limits of the terminal office. If delivered at a greater distance so spec- ial charge ~ill be made to cover the cost of such delivery”. Me Pena Cag eee J?--Cx> oti Lean iS Gfniwte. oe Bay te ee PiLe- @ <_ tt of Sth. c= one ee OE We._4 of ee. es fom. ay gy ae nwa SK CFV ee Bg CF ececen at La 7 Lafi- bet (PL A eas Mt hdt : toe A i Aco eo in the. ‘Superior court, aay. Term, 1908, teen a | North Corolina, Po?) Tredeta Céunty, a 7 Charles. D. Hott, Pleintit?,, : e Z vs.” j x ti 3 | | ES Re Charge:of the Court to.the Jury. “Restern vaten ‘felegreph Co», | eee Ebates Rieiaee 2 ‘ m te! a § ; wae ee Defendant, | “This action, gentlemen, was brought by the plaintiff to recover Asann on. account of mental anguish for the suffering of mind: eaus~ ‘ ed him, as he alleges, by the negligence of the: Refendant, in that ©. the defendant, having received a message from his Sistetuin-len: Delis Young, notifying him of the death of his brother, and whet’... the funerel would take place.at Winston, néglented to deliver that. tiessage. to him in time for him to take{the train apd attend the fon- ond of his brother, end it devolves upon the plaintiff to setisfy you by the greater weight of ‘the evidence of the eee of the de- fendant, end also that that ee resulted in keeping him fom ed Paneral; ‘or in other words, he says thst if the message ped been promptly delivered to him, he Woukd have had an opportunity to athens. re the funeral of his brother. and = @agon of the negi igenge of the. 43 defendant in. not delivering the message he Was deprived ‘of that priv- ilége, end in consequence of which he shaw suffered mental anguish. I heave" been requested by "gl de féedent to give you pertain in- structions, which, after Looking over, .I° linve decided it dehy duty ..to give you, and | ask you. to. Pay etriot attention to then. The defendant te pot an itheurer of either. the safe oF ‘Bpeedy delivery of messages, but the Law: loestrequire” Of 1t that 1% exercige ordinary care both in the. traninab ion. and delivery of neboaces it~ 7 trusted to i¢, Se 4 The plaintite, thrdtgh iris » 5 oaniased, in open Court, having con- ‘“oeded that he aid not oletm’ that the ceregtent had been guilty: of negligence in the transmis ony’ QF the neskage, in question from Win- _gten-Selem, ¥. 4,” to, Bimwood, ‘but that che Feliea exclusively ween. . the alleged nselaggson of, the - in the felivery.. of the mes- Pe, ns “5 ¥* ay @ f » ¥ ‘ > >: es _ ; 4 “?-ge+4 . + e et . ‘ a< tas : ’ ‘ ‘ és YE ite ° ’ y ptr y* : . awn ‘gd . mg ‘ a +.» yan es, efter it iad. been seoaired st defendant’ s office at Elumood.,. ee es at 8: 56, a, my June. 22;. p RIOR" you need not. consider in pase- ‘i aan ing upon, the issues submitted the question” of trenbnitting gaid neakege from Winston-Salem, Ny. Be, but only consider. the question oe ‘whether. ‘the defendant failed to exercise due core in. endeavor "ing to deliver said message after, it af received at himwood., | I charge you that the defendant had the Tegel right’ to re- | strict its free delivery limits: In other words, it had the right ‘) to make reasonable rules and raguiations, ‘restricting the territory _ Within which it would give frée delivery of messages sent over ed wires, end if.the jury shell find from the exeater weight of the evidence that defendant had atopted a rule oF regulation that it would only deliver mesdages free” within one-half mile of its office at Elmwood, and that it would chatge extra, the expense of déliver- ing & message, to any person residing a distance of more then a half mile from said office --<I “cpaitge you. that Sich rule was 2 reasonable one, which defendant: “naa 2 right to make end enforce. Ifthe jury should find Sri the greater weight of the evi- dence that the plaintiff, Charles D. Mott, lived beyond the free delivery limits at Flmwood; that is, more than helf a mile from de- fendant's office - and that hée-was not within said free delivery limits at the time said message was received, then I charge you that the defendant had the right, before attempting té deliver-said mes~ sage, to wire to Winston notice of this: fact. and any reasonable time. necessary for this purpose, shoulé not be counted by the jury. in paaeiie upon the. question of whether the defendant used due dili- gence in attempting to deliver. sata nessage ,{ unless you shall find from the evidence that the defenfant's agent at Vinston informed the sender’ 8 agent that there would be no charge for delivery ‘beyond | the Limite.) In brachat, — actote 4, fi Quiet) * If the jury should furthér ty from the greater waagyt, of the evidence, that the defendant, without uhnecessary delay, wired to Tinston thet Mott lived beyont—the free delivery limits, Mr Meomend- ed the extra cost-of deliveriig-the. pesesge to him; that the "inp ton offios without any unnecessary jdeley: communicated with Delis Young, = 2h ie oe ae ida iRere who: ‘goakioiteed ‘the aaid charges, and. that her reply was telegraphed pack to Elmwood without unnecessary delay, ‘the Court eliarges you: ov - thet 4 4f you find no more time was consumed then was. reasonably nec- : “easary ‘to secure the’ guaranty of said extra ‘hares, Lara Beret tended -. should not consider such time so used in securing said phd tant. "in determining the question of whether the defendant was negligent | “in ettempting +o deliver gaid uessage) untess the-Winston aperit told sender there would be-no extra charges, but their inquiry should | be, was the defendant guilty of negligenge aftér such charges’ were ‘gusrenteed by Delis Young. |. The ééfendant had. the right to demand such extra charges for delivering . seid message, before attempting to deliver the same, and was guilty of no negligence if it did not attempt to deliver the same, during the time reasonably necessary for it to secure said guarenty.. If the jury should find from the greater weight of the evidence that the message was receiyed bt 8:55 a, -m. at Bimwood; that Mott lived beyond the free delivery limits; that the agent. at Elmwood uged due diligence in Somme ting this fact to Delia Young sand ask- ing for the extra charges, and that her reply guaranteeing seid charges was without. unnecessary delay fronsmi tted back to Elmwood, but that , before said reply, in the exersied of due. cere on the part of the defendant and its agent, could-bevsent back .to Fimwood, the arent at Elmwood, shoeing the son of the plaintivf pass om his bicycle, gave the message to him with instructions toigive iteto his father without delay, éad-thnt paid son promised to do so, and that this act of said agent was whet a menof ordinary prudence would have done under the existing ciroumstances, then 4+ charge ‘you that the defend- ant was guilty of no negiseeiee sn the. delivery of said telegran, and the jury should answer the first issue "Ho" ,f uniese the’ defend- ent’s agent at Vinston informed tHe agent of sender that theré would be no extra ‘oharges . | g. bachrty, added by he Qf —- It waa the duty of the plaintiff Mott after sata telegram wae delivered to him, to use due éare-and diligence to go on the train to Winston,. If the jury shal].¢ind from the evidence that the = - vu Pt ays a train from sooreb fie, ehioh: "peaced Barber" s Junction yt he? ? Pia. 12: a2. Ps mM. of that’ “day; that. ‘pleintitf lived 8 miles from Bar- oo yer! as ‘and’ that after said telegram was received by ‘him he could © ope: reached ‘Barber' 8 Junction in time. to have taken said +e: 4&® train, by, either walking | from his home to Barber's or riding his Diépeae. but that he: delayed starting, trying to borrow a horse and buggy, until it was toe late; and you further find that a man‘of ordinary prudence in the exercise of ordinary tare, would have known that such délay would prevent his making said gonnection, and would have known that he could make qaid trip successfully by walking or riding his bicycle, then I ohaxes. “you to answer the first igehe "No", end the second issue "Yes"; for if you find such to be the facts then any delay of defendant a ‘Gelivering sail. message was not: the cause of pleintiff's failure to ettend seid funeral, and his own lack of care and failure to’ ast with reasoreble promptness and dil- igence, wae the proximate eause of the injury he complains of, that is, his failure to attend the funeral. If you should answer the firgt issue “yes” and the second issue "no", you may consider the thira issue as to damages. I charge you that if you come to answee this issue, you cannot consider any grief of the plaintiff's caused Dy the death of his brother, or any annoyance he may have felt “on accogunt of any delay in deliver- ing said telegran. You should be careful to distinguish between such grief ss he may have felt on account of the death of his broth- er, an¢ only assess as his damages compeneasation for tny additional grief or anguish of mina he aniy-haive sufferefi on account of the fact that he wes deprived of the privilege of attending said funeral, ana you can assess damages for thik only in the event you find from ‘the evidence, thet the pieintif? was deprived of going to his broth- er’ s funeral Ww the negligence. E ‘the defendant in delivering said: x telegram, ‘and mast he wes not prevented by hia own lack of care ond. attigence é | sae a oe “The controversy vetweer plaintif?, Mott, and the, defendant's agent, Laken, in which some of the witnesses testified that. they “ oursed each. ‘Other, hes no beaping upon the. issues submitted to you, and you will not consider the’ ‘ane in passing upon.the issyes. as ‘Go negligence ana damages, but you will only consider it in passing upon ‘the credibility of the participants as witnesses. The jury will not be authorized, under any view of the case, in finding thet the plaintiff. is entitled to vindictive damages, or ‘dameges by _w f punishment. a The CHE. has asked me, gentlemen, to give the following instructions, which / give you.” This is an action brought” bythe plaintiff to recover damages for mentsl anguish alleged to bé"duffered by him because of the negligence of the defendant in not promptly delivering a telegram, ennouncing to him the @eath éfvnis brother. It is well settled law in North Caroliata, + that stitch damage. msy be recoverea, irre- epective of eny phystent signe; delay ih ‘the’ annomncendnt of a death, straying or Fecovering of a child or the like mey oven be proauctive of the eed ary. to the feelings, for which our laws are ~~. adequate. [xt appears from the testimeny in the case, by the sdmission of the pleadings, that the message in question, was delivered to the defendant at Winston, and the charge for the transmission paid, ‘Bnd it further sppearing that vensd message was received bythe de- fendant st Elmwéod, N. C., at \@:58 a, m., June 22, 1905, pnd it , Pubther appearing that the agent at Elmwood knew the plaintiff and where he lived, the :Court ohargee the Jury \thet if it should find this state of facts, a prime facie epse is aig dut against the de- fendant, and if nothing else appears it would be the duty ‘of the jury to snewer the fire, issue "yee. | Cdlofokm (ett }b, . 3. It is the staty of the defendant to exercise reasoneble oare and didigence to deliver a message, and it was the duty of the fe- fendant, knowing where the pleintiff thea, not to hold this mesaage ‘hut to deliver thé same to the plaintiff, Mott, ang this: would be Ho whether abare. ‘ere any gueranfec charge? paid oF “not, eax espee- dettys tt would, be. the: auty. ee the. defentiant $9 deliver this message, s * promtiy, if the } cogent of the. defendant at ‘Winston-Salem: hott figd g < _ the’ sender that® no: extra onarges were necessary, at the time ‘the: , x | message. Was deposited for trstiefitegion.] ee Greipohe. by hfh po Hf [ Ifthe jury should further find that the agent of the defendant’ at Elmwood placed the: mesage dn the hands-off the plaintiff's gon, at "40;20, ana for any cayse the son of the plaintiff did not deliver “y to the plaintiff until 11:30, then the Court charges the jury that the defendant would be guilty of negligence, Heoénse the de- fendant made the son of the pleintiff its agent, and the negligence of Hott's son would be the négligence of the defendant Company, and the jury would answer the ftret issue "yes." | Een oho ot ths hifk a Ifthe jury should find from the ‘evidence that at the time of the delivery of the méssage at the office in’ Vinston by Hoosier, that Hoozier énauireg i? there would be any extra, oharges, and was. in- “ fotined by. the egent at.) Si cation Sedeu, that there would-not. be, «then the plaintiff would be entifled to recover in this action, if the saa was not promptly delivered, provided the plaintif? was pre- vented fro ‘ ttending his booties ' Sfuner in consequence’. ] © 1. 430 thesauty of. the datontent company to. have Bufficient fa- cilities to transact all the~buginess offered to it for all points at which it pap” OSE 008 , singe it is not a mere private duty, but a public duty +6 which its Miduphise authorise it to perform. , “And the Court charges the jury thet the fefendant company’ had’ no right to give the railroad business preference over the business of the tel- egraph Company. - J Ee onfehar oy atts Bashtha age 5 - ic 7 The Court charges the jury that, the jury will not take into consideration any. time consumed by the agent at Elmwood in attention to the Feri rene 0m igess eo S. was1 J j L , oes gg. % (jt If the jary*Should find from the evidence ‘that 10 or 20 min~ utes only were required to go from the office of the defendant at ~ Elmwood to the plaintiff's house, meking the time of the arrival at BiSi Estee naane Gi Pe and if the jury, should furtlion. find thet beth cre v 2 s Ye 4 the eniage. the 3 hela; and failed to be ‘delivered. to the plaintiff f until 2 11:80’ 0 Q "elook, ‘end the afie gutter immediately. ‘began his pre- | peration: to go. to Vinston, and should further find thet he hed 8 rs miles te ride, ana that. ie was uiebrs to Wake the “trip, and catoh *. the train at Barber' s Junction, sna should “find that this foilure — - was Ssépatodsh by. the negligence of the defendant Company , : then. the: 24, Company, would tbe Liable in this case, and it world be the duty’ of a jury to. 80 ere] &e Lf h, eof t- Gro feke= ch 7, These spectel iaateushinna, gentlemen, .eontain about the rules. of lew as IT understand them to be applicable to the facts in ‘this case. You will reeall’ the evidence wand‘ the contentions of the par- ties. It is reasonable anf, it is ‘the Lawful right of the defendant » to make reasonable rules 2s to what “territory within which it will deliver messages transmitted to it.» 4s TI have charged you, the hel f-mile limit as to this place, the rule whieh was read -in evi- rae to you, Web 3 reasonable rule. However, tf the defangent, when it receives 3 message through its seents, notifies the sender, and the sender proposes to pay, if there sre any, and it potifies the sender that there will be no extra charges, then' it is the anty of the defendant to promptly delives the message, although it mey be ‘outside of ther free delivery limits, and the detendant Compaiy. is bound by whet. its agent »t Winwton does_in receiving the whalers : ena what he -saye in regard to that, as much as it would be by ‘what its agent at Elmwood did. The, defendant, through its agent, wonld not be nllowed the throw the gender of a messnge off his guard, and tell ‘him that there were no extra charges when it is notified thet the gendea liveé beyond the free delivery limits, anéd thereby delay s the transmission and Pare “or” the negsage. . 4 te Now, it 18 a question. * Meat: *irst , im the investigation ofthis _ patter, for you to rect de pees you are satisfied from the evi- “@enoe, by its greater weight. “tHe when the message was réoeivet at Wineton, Hoosier toid the sgent there where the plaintif? lived, the distance he lived from Elmwood, “aiid saked if there would be any ex-' te eharges , and whether he was ‘told ‘nat’ there would not de, ee } 3 ’ zis ° ' | oma 7 % : ; - 4 yer? Big or ok a tee : RP aay, then the. degentont could not deley | the. tronsmiseion’ of the - meagage. ant te delivery to the pleintare for the. went of pay of. AB: Othe extra charges, and would ‘not be entitled to tke time to send Pall 7 eh Aaguizy dalek, because it was the duty of the defendant! ‘g agent Bt: wineton, bo heve’ notified ‘to agent at Elmwood to deliver thet message, if he mede such statement to the agent of the ene. Row how does the testitony satisfy ycu in regard to that®. It | 48 eontendea upon the part of the plaintiff that that’ etatement was “ " iste: ond it is contended upon the part of the defendent that it was, not -=:that the message was simply delivered to the defendant, one- querter of a dollar, and the extra charge, including the words more than ten, 29¢ pr 277/, was paid, end the message was’ sént, and for- ‘warded, and when the service messege, as they call {thas returned they paid ‘the extra charge. Now, that is the contention of the defendant, snd: how is it, ‘Deosuse upon this depends how you shall be guided in your further inquiry? Now, if that was not done --' thst statement wes not made, then your ingtiry is, Bia the de fondant use dane diligence when it received the message st 8:55 at Elmwood? t is your duty to take into consideration the length of time which Yapged hetween the time the message was received at 8:55, and the time when the services message was sent off at 9:21, I believe, notifying the agent at Winaton that the sendee, the plaintiff, Livealbeyona the free delivery limits and asking for . guarenty of the expenses of de- livery... It is your duty to take into consideration ‘the length of time that. war Oceupied in making ‘thet inquiry and getting thet , guaranty in Tinston, an* the returning of the informe£ion to the agent at Eluwoot, That megsage was returned, according to the testi- mony, at 111i; Now, 1% there was no statement i thet extra i oberges Fouls not he made “At Vineton, then the defendarit ie entitled to" F9nsonable time ‘in which to trenenit this sexyi¢e nessage and get a answer, and get the ‘guarenty. Up to tha. time when he regeived the , -lanewer , 7 theré, was Cne €iligence exercised in getting it, the agent Po Sarege a under no oblipatione te gen’ the mescage ‘to the plain- ihe. . ae “ ~ MS. Peg, ~ ‘ -_ $7 ere & o, : “S i ‘4 ‘ . ‘ a “% - este. at wag ite duty s ‘Sekever the. messace if it See “epic” “but it wes. under rio Legal optetione to procure, a messenger \ ORI send a messenger outside, pot. the free delivery a until he reveled that answer. =. The defendant contends ‘further thet-nt 10:30, previous to the Hig tte arent received the Retarn of the eervite message, ‘he aeliv- . ered.the message to the’ron€?! tho nleintiff withi instructions for “chides f him to carry it to his father.” “ow, wes that reasonable? Aifferent rule would. apply, according as you may find what occurred at Wrhsten: because if at Vinston the agent of the defendant noti- fied the sender there would be no extra eharges, then. whatever mes- senger the defendant may have selected eat Flmwoof, must promptly : deliver. the méssoge, but if there was no such statement made at Finston All the defendant haa‘ to do when he got that guaranty was to use resbonable diligence and entrust it so someone; who he might reatonsbly think would carry 1% to the plaintiff -- reasonably sus- pect would carry it with due aircienes. and if 11:11 was within rea— sonable time, then you dowd only count’ the time from 12422 tintil the time. when the plaintiff reseived the message. ia If you should find that there was no negligence on’ the part of the defendant, you woull answer the First Issue "Jo", and that would énd the cage. The defendant contents thet if you should fina it wes guilty of negligence, the plaintiff was not prevented on ec- count of that negligence from going to the funeral, and thet neces- sitstes your inquiring as to the facts and circumstances surround- ing the plaintiff at the time he received the message . You will teke into consideration the distance, the length of time after he received it; ss youn shell find:from the testimony he 414 teceive it, and say whether he exercised reasonable diligence -- the diTigenve of°s man who was. anxjous to go-- he could ‘have reached the station $Y: Barber's: Tinetion in time to have’ taken the trein. Itt your duty ‘to teke into. consideration what he did +- ‘take “itito oonetdora- tion the fact, as you-may find, thot he sent to get o horse and du e . whether that. was the act of » prudent man, in endsavorine to reach. P Lik, -— ate é : . i ‘ wr Deas » wh, “the trein. Take into consideration the fect that he aid zo, sane the time thet’ he stopped as he wént clong the road, and ‘his acts, ‘as you ‘may find then to be from the evidence, ind say whether or not it vies his purpose ,,;:and whether he was reasonably diligent in endesvoring to reach the funeral, *nd then you will.asseags the dan- ages under the: rules. which I have siven vou. 3 re you'4nswer the first issue “Yes” and the second istnue "NO", then yon will proceed to the question of dameges under the rules which T heve laid down, ana say what suffering the plaintiff has undergone on, account of not being able to atten? the funeral of his brother. You will not teke into-oonsideration the suffering which came to him by reason of. the decth of his brother, but only the suf- Serine which came to him by reason of the failure to attend the fu- neral, if such failure was due to the negligence of the defendant. we ~*~ The jury, for their verdict, answered the issues as set on in the record, _ Motion for 2 new trial upon the ground that the Court erred in giting’ the instructions asked for by the plaintiff -- being ok- ceptions by the defendant numberes 1 to 7, inclusive, Motion over- “ruled, an@ the defenisnt excented. Juégment for the nleintiff, an? the defendant excepted, and appepled to. the Supteme Court. Notice of appeal wnived. 7 Bond ss fixed in the sum 6f°%40.00. Defendant allowed thirty days. @fter rl . ,* ' d “" | a 7 Ce 4 ; se Attofney for defendant, appellant. Ly Court to serve case on eppeal, and plaintiff thirty days thereafter: - to serve counter-case or excep 4. Cc. a7 Afe fac at A~tAL Sava Zt t7rit. Coa. San cz Roi lid x” he Lerifics: Oceae Z Te 9 Coky : fe, 2yvil nie Ge 6 WW, Y Liss Railroad Records 1906 North Carolina Superior Court Iredell. County May Term, 1906. John Garner vs Southern Railway Co. This cause es on at this n t) be heard before His Honor, E. B. Jones, Judge pearing to the Court that said cause has been setticd and compromised for the sum of Five Hundred Dollars; It is therefore, considered and adjudged by the Court \ that the plaintiff recover of the defendant Hundred Dollars, ($500.00). Presiding. -SUMIMIONS FOR RELIEF.—Judge.—Printed and for Sale by Brady, ‘The Printer, Statesville, N. C. 3-29-’or1M. Brae De County.--J9n the Superior Court. | AGAINST SUMMONS FOR RELIEF. State of North Carolina, To the Sheriff of... Sa Lf ue / eS County—GREETING : Dou are Hereby Commanded to Summon jen anet slates ypsntasnmnnepanendaner nant shill naicoaaate the Defendant. above named, vk el ee wiferin your County, to be and appear before the Court, at a Court ane, ad en 000 Cart Bb the fly endeg @- Ot 40-2 ier Honday | day of Qa —t-f_—>....... and answer the complaint, a copy of which will be deposited in the office of the Clerk of the Superiér Court for sfid County, within the first three days of said Term, and let said Defendunt__. take notice pe. ae fail to answer to the said complaint within that time, the plaintif/....... will apply to the Court for the relief demanded in the complaint. Hereof fail not, and of this summons make due return. Given under my hand and seal of said Court, this _.... ae. day of 5» MW tid. insiisitcinprnastechdivel 100.2. ~ Clerk of Superior Court .. County. t STATE OF NORTH CAROLINA, In the Superior Court. © neat annentatqnnenentntateneeee ne COUNTY. \ AGAINST BO N D. We acknowledge ourselves bound SB ee ee ae Ok ie Se . Scere Ce Gnee tO Gr ENO MIO OF Dollars, to be void, however, if the PURO oo ek ees Seema een eon ors | shall pay the Defendant........ all such cost as the Defend- ont........ may recover of the Plaintiff.......... in this action. Witness our hands and seals, this day of ....... go a eee Te Ne ef A, D. 190..... a aa oe eee ( Seal.) vi sensi icshalpissheeapidlelsihesoesipreteliasaairbsseoadrsewblyigianshannncih-cidicunidoet peed oiecoagle ( Seal.) ( Seal.) 3 eaactcn plete isha ai Se oi patdiaatagllSscepanldia . being sworn says he is worth the sum of two hundred dollars over and above his debts, liabilities and property exémpt from executions. , Sworn to and subscribed before me this day of . 190 \ \ ~ 2 . . - QR) ; =>) j= * . 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Gre VIVO feecrs ee was Le At yPiccic. leg Cet ee te Le fer<n cee-Eo tail The, 14 of ere | i a North Carolina In the Superior Court Iredell County As of Nov. Term, 1905. G. W. Pierce vs: COMPLAINT. Southern Railway Co., The plaintiff complains of the defendant alleges and says: --First-- That the defendant is a corporation, organized and exist ing under and by virtue of the laws of the State of Virginka and at the time hereinafter mentioned, was a common carrier for hire, in the State of North Carolina, and was in pos- session of controlling and operating a line of railway ex~ tending from Salisbury, N. C., to Asheville, N- C., to- eether with the tracts, cers; right” of way, locomotives and other appliances. -~Second-- That on or about the day of December, 190-- plaintiff who ta resident of Iredell County, North Carolina, was going from Statesville, N. C., to his home about eight milos East of Statesville, and was walking along the right of way of the defendant. That upon reaching a point on defendant's right of way about two and one half miles Kast of Statosville, one of defendant's freight trains came over ite track going towards Statesville, that plaintiff was standing on the right of way of defend ant and about 25 fect to one side of its track, that when the engine and tender of said train came near plaintiff one of defendant's servants, who was and is unknown to plaintiff was standing on @ car of coal next to the tender, shoveling coal from the car to the tender of the engine. That said servant of the deféne ant upon secing plaintiff began to throw pieces of coal at him, and did then and there in the presence of the engineer ad in charge of said train, intentionally and unlawfully as- sault and heat plaintiff striking him upon the head with a piece of coal whereby plaintiff was severely injured and krocked to the ground, and by striking plaintiff about the wrist of his right hand inflicting a severe and painful in- BR EB tems jury to plaintiff's hand and wrist. --Third-- That by reason of the assault and battery upon the plaintiff committed by the servant of the defencant afore- said, as aforesaid, the plaintiff was caused to suffer great physical pain, confined to his home for a period of four weeks, and rendered unable to perform labor in cubtivat _ing and making his crops for the following year, to wit; 1905., to his great damage ,One Thousand Dollars, ($1000.00) Wherefore, plaintiff demands judgment against the de- fendent for the sum of $1000.00 damage, and costs of this *% action to be taxed by the Clerk of this Court. . for Plaintifsf. G. W. Pierce, after being duly sworn deposes and says, that the foregoing complaint is true of his own knowledge, except those things therein stated on information and be- lief and as to those he believes it to be true. —_- am a Sworn to and As tag before me this the er ass of May, 1906- ae natn or ~ __ fh hatvty? North Carolina Superior Court Iredell County November Term, 1906. Ge W. Pierce ee ANS®RR. ‘Southern Railway Co. The defendant answers the Complaint and for Answer says: ~--First-- That it is a corporation, duly and originally created, | organized and existing under, and by virtue of, the laws of | the State of Virginia, was, and is engaged, as @ common car- | rier, for hire, in North parolina, and is in possession of controls end operates a line of railway between Salisbury | and Asheville. --Second-- That the allegations contained in the second paragraph) |; of the Complaint are not true and are denied, --Third-- That the allegations contained in the third paragraph of the Complaint are not true and are denied. And for a further answer afid defense to plaintiff's action, the defendant says: lst-- That if any servent of the defendant Company, | while shovel ing coal from the car to the tender of the engine saw the plaintiff and began to throw coal at him, and did then and there assault and beat the plaintiff with coal, as al- | leged in the Complaint, which is hereby denied, the same was unknown to ahd wnauthorized so to do by, this defendant, or any of its officers, and such servant was not, at that time, 4 acting within the scope of his employment with any purpose ll of protecting the master's property, or otherwise furthering the master's interests. And having fully answered the defendant ask that if re; cover its cost in its behalf expended and go hence without day. ee c Cachirorcer —--e- Attorney for Defendant. W. B. Brown, being duly sworn, that he is the Local Agent for the defendant Company, at Statesville, N. Ce, that he has read the foregoing Answer and !nows the same to true as of his own kmowledge, except as to those things stated therein upon information and belief, and as to those he believes it to be true. Miwa Sworn to and subscribed before me this the Lf. ~re--=-d- 1906. plertecee A440. IN THE SUPERIOR COURT County. | Judgment Against AemGOe eT ene eeH ee eeee EEE eet eee eneeEEeEEheeeeeE eee SSeS eeeeees POOSEEESS EEE SEES SS eeeeenennnns ———- Order of Arrest | Continuance Issuing Commission Motion, Entry and MONOD chan dbeds suricales Impaneling Jury Judgment final befo Docketing same “ Execution of Sheri Magistrate. ............. Plaintiff'a Witnesses “ Injanction Order, including Bond and and Justification Subpena, each name Notice, for each name over one in same paper Justification of Sureties, except as otherwise provided Judgment final in term time Judgment in favor of Widow’s Year’s Support Transcript to Supreme Court............ POORER OOO EEOED HOEHEEERECSESED CORSE SEES SEEEEHOHEHEEEESEEee® Penne eneeeeeeees SeeeeeeREne SEES cere esesereeEeeese canes SHesee Notifying Solicitor of Removal of Guardian. .. ..........0..cssese00ee SP eOeSOE NOS OES ESSE SEROOE ES EEESE THERES SECEE EO RSOESEEEOE SHEHEESSESES Caveat to a Will, entering and docketing..............cc.-ccss-esesseeee MOI GE sci cabhts cteaidocénch piveciadoan “susie lohisians Wis CODAUINT c.nca“sstecitcbdanchenaceudoneesas:aacebcoesniincestes TIS Or CIID. ccrcnsccecssacses cttosccnvacsintsncusasieecscneeneceine f's Return Appeal to Supreme Court, including Certificate and Seal....... .. 1,00 15 1.00 .80 1.00 75 25 25 25 35 RO Tlidessndcs « 10 -50 1.00 |} ....0..+ eeerereeneeel e, eeeecncees seteeees eeenesees seeeweees oaeeeecwees teeeereseeee ree eeeee sees eeevoees seeeereeeees 3 ot i : se pe ae OBI “w4a] jsurpb y ("9poD 2G) Ag pexy sy) “HAD-SISO) 40 TH “£IHI00 TAI on Railroad Records 1906 SUMMONS FOR RELIEF.—Judge.—Printed and for Sale by Brady, The Printer, Statesville, N.C. 3-29-’011M ————_—_————————— didi Lh County.--In the Superior Court. Haat {okovr. eee | . onnott i, [ — L, Wa | ore 0 | SUMMONS FOR RELIEF. State of North Carolina, To the Sheriff of Ww tr . are Bereby Commanded to Summon i — ane eeeeeneeeseeeessecnseaasccees Seeeeseehasesesaseenaeseeees ee eeeeeeeeeee esses eeeeeeneseeeeeeee eee eeOESESeGEGEESEESan BEERS NSSSEESnSeseeneseeenesesesenestesseeesessesaeaaensneseseneeeseneaeee the Defendant... above named, if A A ja-n---- Court, at a Court to be held for the County of enc caeenae ES and answer the complaint, a copy of which will be deposited in the office of the Clerk of the Superior Court for said County, within the first three days of said Term, and let said Defendunt.... take notice if a ines fail to answer to the said complaint within that time, the plaintiff........... will apply to the Court for the relief demanded in the complaint. Hereof fail not, and of this ann make due return. Given under my hand and seal of said Court, this Lh ss. day of Clerk of Superior Court 4. eK... County. o “ie, ere STATE OF NORTH CAROLINA, pe asta echoes sordeap orocbaice cagactoun COUNTY. $ We acknowledge Ourselves DOUME UNO on eeoceeeseeecoeesesoneessnnsessneessconseesonessssuesesssusssstussssanuvesssuessesssoueesssnuesssonsssesanvessoecssasesssaneeee the Defendant in this action, in the sum of ...................... masgypvnnseencenssceeesegentnsnncennenesennssecenannenenensen Dollars, to be void, however, if the TN a esl sie ene ease pese les shall pay the Defendant........ all such cost as the Defend- ant... may recover of the Plaintiff........... in this action. Witness our hands and seals, this _.................... BOY Of, nnontnieenennencinens ns A. D. 190..... Ses oe esas esa cse cans aoncu soc asnac sri eca payer anon, eesceseeneesoeeseeseeeecrseais ( Seal.) Bes ne cence acme reme ood ceva tes ene eevee ledge eevee ave eases ( Seal.) Feige vot ress eens yas oversea ewes ower cees-caapey eh testy eenieessaes ease ernseeyeco ne eee ( Seal.) A Eee ene snectb nas vals ka srsen cannes uta u nec sueowv vena sae tsee d= avcesta asaya eoesisicoeye being sworn says he is worth the sum of two hundred dollars over and above his debts, liabilities and property exempt from executions. - | Sworn to and subscribed before me this ............. OY Of onan eccee ce eeeceeseeseetesnnves eveveeenees 190...... * “A of the Superior Court of .. A4AAAAA___. SUMMONS FOR RELIEF Retirnable to Received .. County. In the Superior Court. ..County. Plaintiff's Attorney. Saree ~\ | a ae North Carolina ¢ In the Superior Court. Iredell County # January Term 1906.° Inez Deaton ¥ vs. #: Complaint. Southern Railway Company # The plaintiff, complaining of the usfendant, alleges:— First:— That the defendant is a corporation, created, organized and existing under ahd by virtue of the laws of the State of Virginia and doing business as a common carrier of passengers for hire in the State of “orth Carolina and elswhere, and for said purpose controlls, , maintains and operates lines of railroad in said State and elswhere. , Second:~ That at the time hereinsfter mentioned the said defend— ant controlled and operated a certain line of railroad extending from High Point, N. C., to Salisbury, NW. C., and also another line of railroad connecting therwith at Salisbury, N. C., and extending by way of Barber's Junction to Mooresville, N, C., and at. said time was operating upon said lines of railroad, for the purpose of trans— porting passengers, passenger trains, connecting at Salisbury and at Barber's Junction. | Tird:— That on or about the 22nd day or March 1905, early in the morning, the plaintiff being then at High Point and desiring to go to her home at Mooresville, purchased a ticket from the defendant's agent at High Point for Mooresville, N. C., and voarded the defend ant's passenger train at High Point anu was transported to Salisbury, where in obedience to the airection of the defendant's agent, she changed cars and boarded.another of defendant's passenger trains which she was informed ran from Salispury over the defendant's road on t# Barber's Jimotion and to Statesville. | FPourth:— That the plaintiff's hearing is defective, which amounts practically to absolute deafness, and for this reason she is unable to converse with another or to understand or hear any oral commnication, but has to receive all communication by means of a writing except as she attempts to comprehend by observing the motion of the lips and i ae of articulation. That this deafness wag made known to the conductor on said train by the plaintiff soon after % the plaintiff left Salisbury, when the plaintiff told said conductor a tir that she was ueaf and asked him to teil her whether she could get home quicker by stopping at Barber's Junction and going from there to Mooresville or whether she could get to Mooresville quicker by way of Statesville and that the plaintiff offered said conductor & pencil and paper and asked him to give her this information; that said conductor refused to take the pencil and paper and refused to give her tne inrormation sne asked, but continued talking to her after she had told him she was deaf anu tue plaintifir could ior and did mot hear a word he said, though she thought from the imove— went OY his lips that he told her to get off at Barver's Junction; 4 that later and before the train reached Barber's Junction the \ plaintiff again asked said conductor for the same information, telling him that she was deaf and offering him pencil and paper and insisted that he make known to her wheth:r to get off at Barver's Junction or to go on to Statesville, and insisted that ne wake known to her which route was the quickest; that said conductoragain refused to take the pencil and paper or to give her the information desired, and the pleiitiff was unable by reason of tiuis wanton, wxtxm willful and negligent failure of the defendant's agent to perform a known duty, to gain the information she desired. That finally the said train stopped, but plaintiff did not know why it stopped or that it had stopped at a station; that pliintifr could not see any station from where she was; tnat neither tne said conductor nor anyone else announced the stopping of the train or tie station to this plaintiff, and said conductor knew of her deafness and had been twice notified thereof: that after said train had been stopped a vary short time it began moving and when the plaintiff's car was moved a short dis— tance, tae plaintiff saw the station and discovers’ that it was Barber's Junction; that having been unable as aforesaid to get the information she desired, she acted upon her best judgment at that moment, beleiving that she should get off at Barber's, and started out of the car; that when she reached the platform, just as the car was moving slowly by the station, she observed that the train was moving slowly and fully believing that she could alight in safety, she did so, and was thrown and injured, That if the station had been announced to her she could have gotten off before the train began to move, but when she foufd that she was about to be carried by the station and having not even a moment for reflection, she be— came excited and distressed, and acting upon her best judgment and discretion and believing that she could get off unharmed, she attempted to do so and was thrown to the ground as aforesaid and injured, Pifth:— That the plaintiff was seriously injured by the fall, which injuries she believes are permanent. That the plaintiff is advised that her back and spine are seriously onu permmaneatly injured; that she sufrered great piysical pain, and still suffers great pain, which has resulted in the impairment of her health and causes loss of sleep and great suffering. That plaintiff has been treated by a physician and has been put to considaeraple expense by | reason Of said injuries, That plaintiff is a seamstress and and by reason of her injuries she is unable to perform the work of her vocation, owing to tne serious affection of her back and spine and thus she is rendered unable to earn a Livlihood. Sixth:- That the defendant is guilty of gross negligence: (1) In that &tssaid conductor on said train between Salisbury and Barber's Junction wilfully, wantonly and negligently failed and refused to comply with the request of the plaintiff in giving her the information she asked as alleged in paragraph four hereof and negligently refused to imxs known to the plaintiff whether to get off said train at Barber's or to go on to Statesville; (2) that said uviviuuant and its agents wilfully and negligently failed and refused to inform the plaintiff of the arrival of said train at Barber's Junction or to announce to her the approach to said station, though the conductor knew that she was deaf and had been twice informed thereof by the plaintiff herself; (3) that the defendant and its agents wilfully, wantonly and negligently failed and refused to perform a known duty to the plaintiff in failing xm to announce to her the approach of said train to said station and in failing to see to it that the plaintiff was put off said train in safety at Barber's Junction, and in failing to give her such aid and assistenee as she needed under the circumstances in aiding nie aidan from said train in safety; (4) that the defendant and its said conductor and agents negligently and recklessly moved said train from said station without knowing that the plaintiff was safely put off at said station and without seeing and knowing that the plaintiff knew of the arrival of the train at seid station and without knowing and seeing to it that she got off the train in safety. Seventh:— That by reason of the said negligence of the defendant and its agents the plaintiff has thus been seriously injured and caused to suffer great pain, loss of sleep, the impair-— ment of her health, which greatly inte¥feres with the plaintiff in the pursuit of her work, and has caused her considerable incon- venience, loss of time and expense, which has resulted in her great damage, in the sum of Fifteen Hundred Dollars, Wherefore, the plaintiff demands judgment against the ‘ defendant for the sum of Fifteen Hundred Dollars damages, and for the cost of this action to b ed_ bv the Clerk of this court. * Attorneys for the Plaintiff, Inez Deaton being sworn says that the foregoing complaint is true of her own knowledge, excent as to those matters therein alleged upon information and belief, and as to those matters, sho believes it to be true, Sworn to and subscribed before me this thee@day of March 1906. — North Carolina ‘In the Superior Court Iredell County January Term, 1906. Inez Deaton vs ANSWER. Southern Railway Company The defendant answering the Complaint in this cause for answer says? --First-- That it is a corporation duly and originatly created, 1 } { ' | | ' organized and existing under and by virtue of the laws of the State of Virginia, was and is engaged as a common oaeelten of passengers for hire in North Carolina, owns, controls --Second--~ | | { | and operates various lines of railroad in said State. | | | | That the allegations contained in the second paragraph | of the Complaint are true. --Third-- That the allegations contained in the third paragraph | of the Complaint are true. --Fourth-- That the allegations contained in the fourth paragraph of the Complaint are not true and are denied. --Fifth-- That the allegations contained in the fifth paragraph the Complaint are not true and are denied. -- Sixth-- That the allegations contained in the sixth paragraph 8 of the Complaint are not true and are denied. } ' } | --~Seventh-- | That the allegations contained in the seventh paragraph of the Complaint are not true and are denied. And for a further Answer and defense to plaintiff's cause of action , the defendant says: ~~First-- That plaintiff by her own carelessness and negli- | gence contributed to whatever injury she pecetred by jumpri ing from the defendant's passenger train while in noo and without giving the defendant or any of its employees notice of her desire to get off said train. =~Second-= That the plaintiff was guilty of contributory negli- gence in jumping from a moving train, knowing the same to | be in motion. And having fully answered, the defendant asks that it go hence without day, and recover its cost in its hehalf ie Cat hrocZe_ Attorney for Defendant. expended. W. B. Brown, being duly sworn says that he is Local Agent of the defendant Company, at Statesville, N. C. that he has read the foregoing Answer and that the same 1 true of his own knowledge, except as to matters and thing stated therein upon information and belief , and as to tha -* he believes it to be true. Sworn to and subscribed before me this the ---- day of North Sarolina In the Superior Court Tredell County October Term, 1906. 4 Inex Reaton I vs {JUDGNENT. Southern Railway Company é This cause coming on to be heard, at this nerm of the Court before His Yonor Furgeson Judge, and a Jury upon the whole Record, and being heard, and at the close of plaintiff's evidence, a Motion for Non-Suit haing been entered by the defendant, the same was allowed by the Court. -It is , therefore, considered and adjudged by the Court that the plaintiff take nothing , because of her writ, that she be non-suited, and that the defendant go hence without day, and re- cover its costs to be taxed by the Clerk of the Court. “Judge Presiding. ve ” ea ; * i asf e * = P 4 3; if dea g 4 { iS ‘ ? < r t , m1. 4 } a ; f ° ° * : ; : ( 4 s re : i : # ; } * 4 A : . i 7 ; . “ 2 < ; f 4 : North carolina i.* In the Superior Court Iredell County October Term, 1906. G. W. Pierce, I vs { JUDGMENT. Southern Railway Company j This casse coming on to be heard at this term of the Court before His Honor Furgeson , Judge, and a Jury, and the plaintiff comes into court and taxes a voluntary non-suit. It is,therefore,considered and adjudged by the Court that said non-suit be allowed to the plaintiff, and that he recover “ee nothing of the defendant, vccause of his said writ, and that the defendant go hence without day. G AA 4 7 Judge Presiding. v4" 4 ws ; . 4 $ ~ .& - : a sak * Sowies ad ‘ 2 ce Whe og Opti Milagre IN THE SUPERIOR COURT County. 2 o J. Against Crecwecccrscerccensccecercceesesseweseeseeesesseessccncccccens Sen enesenseereensensesesceneses 1, Bill of Costs,—Civil.—Prirted and for sale by Brady, The Printer, Statesville, N. C. Original Summons, or other original process, including all | MIAO ROTO egies acu sans pence syivsnnancasiemachgnessagcon! oesechis $1.00 Everysppy of same...g. ......-scgfgscesssoees .25 shin’ Neko % 60 Appeat trom Justigg’...Z. STEED of cseee voes 50 50 Ordor for enlarging time of pleading®........:scecs0ss sovcesse cgasvosceosens .25 EterlocutoOry Ord Ore <<... .csco. ccosecescoacsds esisrsssccchesccssecdgenssoteccoseacy .25 AVGACHIMEREG, OTOP 180 os cccccsereessens sesees css voseesenars: s¥eatevesace yess: eqares -50 Injunction Order, including Bond and and Justification..... ..... 1.00 IN OT OF BOM se. conecssoneceeeied cornea teonetere.) s sassniven (stsapvaceayeneconsses 1.00 Bubpwmna, cack mame :ccccccccceesocecs|ssece sasaces) sees sssersceevacccecseesen vssere 15 Notifying Solicitor of Removal of Guardian. .. .......,..sssesessee0 1.00 OIC W ECO: reccectcrsecscenracrecterorsesserecaescesccstecolenseasccsstreciasetacetesset= .80 Caveat to a Will, entering and docketing..............c.:csesseceeeeee 1.00 Tsguing Com mission <....2cccs.<csesesescs cecocsscccceescscestsoveseces eevee s.ceeees 75 Affidavit, including Jurat and Certificate....... 0.00.0... cccseseeseeeeee .25 OOM eeeraccesccarencearscnctstacesucesrtancersseeriosctsacecceesussscuecse costs’ reecolsetverte 25 Motion, Entry and Record Of..... ......-ccccsecceee ceoceeseees cee ensseeseess .25 IN OGICO neces laces ccossacesecacecesescesel seaacsisranceccsterscesseseresesacee tsetse eereese . 25 Notice, for each name over one in same papel...... ........0002-++8 ee 10 Em paneling: Jury s.c-....20s-cessncessess/socsccsece ascserscsetecercse ceseveseeserteoss 10 Justification of Sureties, except as otherwise provided ............. 50 Judgment final inj term Gime <..ccecccecccccscccccee cccecceteccescorcecsesceccesss 1.00 Judgment final before Clerk .............cccccccccsseessescecee eeeeseceecnsceeees .50 Judgment in favor of Widow’s Year’s Support.............. se. ceeee 50 Docketing Same..............cccccecceseececeeecee ceceeeesceee ceceeeceeeeeeceee ceees -25 Docketing ex parte Proceedings ..... .... 0.2.2.1 cssssseeese ceesesseseeeeenes .50 ae SUUGMENG. 20... -cacescsesarscscnceeserscsecssnsccesasss) sseasceesescorsn ase 25 Ofi7= re PMMUDEINOMINS ceikoc cuss escecessecsces saeco naccaceesbe'/srccascoesaes teas eatsrsee .25 Indexing Judgment -10 WULin MPA DOIG ccocescccce. sovesscacscrcsersevecsolascesesssesaccvecacsselaveare) sesercesees 10 Postage, actral....... 00... ccsssccccceceee cecceccccecesseeeee cecesseesccceceseeccess caeeees Transcript of Judgment................... sccescseessecsececssesscee ceeteeeesceee .25 Breoutio yf Sheriff's Return......cssccccsssssssssseeesssnse seseecesnen eee jo Appeal to Supreme Court, including Certificate and Seal....... ... 2.00 Transcript to Supreme Court............ copy sheets, each.............. 10 County Tax, when Jury impaneled...............ccccececceeceeee coeeseeeeeee 3.00 Referee 6 ALD WAncel ccc: -cesssseorsarceslccsesrecescsel aves! secsecestencce giiersi ier ticoetees Sheriff ..... aro. ase we ocestaccessesstecavcsves) eccacccvessesecesccsecerecece Isesvaeceoesecseeccecsocesdcesrecser iicetenee COnmSGRUO recccerserecectst) cecearscreceuscecratcscenaancecsesissersrrrcestorstaterer acces ME RABE AGO ioceecccscecoceattecesteseccenetecscocet lc Veersecereessecel cteeettrerereieee toomre inte Prleciri GUT 0) W itnneawee scccccccess) ceccccccsest cocsce cs acs) acess cecusetssccesevceserstcse nl oeereee “ “ “ “ “ “ : ta EN soseelecest scssteccees lsuesevenseaececacecrecttsestoes] teeter coeoc mnt cert? ” Sr, il losben| woupeecibess wastasccasesesescescaks sotecrcererdenees cuessee) ivtoers Deford Airb' 0 W ICROMOOS 06. <5 ec -sncceccsse casscscesdesess. cosous swolestecrcsssss sacs he Be Mil cesvs lcsunes seuss caucus sovecstileeereeehsecserecbed aveuke renner ie iete se Se Ul evecentseiiestauss soctee cecceeenesceue vers wetbe) ceases cesmueureure’) sqedexe “ “ “ “ = Ot vscee' ciev shoaess coctecsuudeuirenrsbagetes sseditece ucvavapitace: (4iGttk “ “ Heeweerccean | sees seeeereees seeeereeees- seeeeecneeee eeleee eeeee oeeeneneewes seeeeeseeees seneeeees oeeeerseeses|eeeee. ve seeeereceess eeeeeres seneceseceee|® seeeeees seteeeeweene aeeeeeenees ateeeeeee sees wee eeeeee connnl eee erene coweneenees oe! leweeee seneeleweee I ace CIVIL DOCKET. | BILL OF COSTS—CIVIL. ( As fixed by the Code.) Railroad Records 1906 SUMIONS FOR RELIEF.—Judge.—Printed and for Sale by Brady, The Printer, Statesville, N. C. 3-29-’011M | : a a County.~- Gn the Superior Court. eenen Oorrnececessnecceceveescecsereecensnasareesonsseeeeeowers 2 ai, cua COR LEDER | _ a sa seckeseeneconcrerenacwnreeresasennessnscs sarees easseeeressasnne senses eeeneeres aaa naneeseeenareds SReeeeras mane ransaneenenreseanasesseannanetsesesenessstesscenneceseses ees worececeenescecete ebonce -eeepanvousesensenotenanensrocceteranaesscooruscoeseansceeseuese cus cee ecs esas aceon coeneee cewncesoceseccnseeens oe snettestes tes eonocet seetcese cece ce etcccecocccncece conccececnccuce Ube ns coneescoeeonacanancecec cscs sececenacocencescoseocoocs Court, at a Court to be held for the County of ieee Monday after th... vane ‘ eugene ddorday of the same being the. ie “ X \ \a day ‘of... Lee anil answer the’ complaint, a@ copy of which will be deposited in the office of the — of the - fail to answer to the said complaint within that time, the plaintiff.......... complaint. Hereof fail not, and of this summons make due return. Given under my hand and seal of said Court, this ........... Z.. STATE OF NORTH CAROLINA, } In the Superior Court. see igetcs sacuesesnsisodtenbendqnsedbagengamecocs COUNTY. soe / We acknowledge ourselves bound wnt. ..--scccscsccccccssssvevsssssssesessssstseessssssssvsssossessessessettstestetesetetees eee the Defendant in this action, in the sum Of ....-..cc.c0cc-cccccscssssesssessssssoeeeeeeesoeeeeoooooeeeoocoocoo Dollars, to be void, however, if the PUTRI encore testers ee lanee a iccenasys tot sntLontondseeenerccierepreccssaesiovta shall pay the Defendant........ all such cost as the Defend- ant........ may recover of the Plaintiff........... in this action. Witness our hands and seals, this... OE OF ic asessnssaspssesnesencs cseoeaseesnaintces A. D. 190... f reenter auey oceans sssktsn ess ox aaoaeeoe euae ces es eteg vase ahstctoeveeuseskacus eefeeuiorseseues ( Seal.) Eee eo oe cpa nna ace emoneydhcra biog Bap nesseanesereyeaseeee ese rueeac tee eeeeeseas ( Seal.) trea eect ea coe ater emacs Voges auaee peers seeteagn oyeayeqss xseseeueens -<seeesfyeueceviesad ( Seal.) being sworn says he is worth the sum of two hundred dollars over : and above his debts, liabilities and property exempt from executions. Sworn to and subscribed before me this _......... 0) ae 190...... & ae | | 5 i S 7 < : w : : ° - a : — : § : O rw : o «(8 ; we 4 : : 2k oa 2 “ . eo 7 E BI) 5 bo i s os & 7} s . ote 3 3 Y a $ 2 v “a ° Vv 4 Az \ 4 ° UO 4 = ‘ North Carolina In the Superior Court Iredell County Nov. Term, 1906. Peter Nichols om vs Southern Railway Company The plaintiff complaining of the defendant for his cause of ad action alleges and aays: % -=First-- That the defendant is a corporation duly ordanized and existing under the laws of the Sate of Virginia, and was, at all times hereafter mentioned, in possession of , operating and control- ling a certain line of railway through the County of Iredell, State of North Carolina, together with Station buildings main track, and side and spur tracks leading from its main track to various ware= houses and manufacturing plants in the City of Statesville, North Carolina, together with engines, cars, and appliances and wasengag- ed in the business of a cawmon carrier of freight and pas- serngers for hire in the County and State aforesaid. ~-Second-~ That at the time, hereinafter mentioned the firm of Je Co Steele & Sons, patrons of the defendant, applied to the defendant for, and.had placed on one of its spur tracks to the Statesville Yard, a box car for the purpose of loading said car with moulders earth or sand for shipment over defendants road. --Third-- | That plaintiff om the -- = day of August, together with otherpersons, was employed by J. C. Steele & Sons to load and place said Moulder, earth en sand in said car, and after defend ant Oe i ll hed placed said car for the purpose of being loaded , the plaintiff commenced loading same. That plaintiff's work was to receive said earth or sant into said car and showel save back into the ends of the car. That while said car was beins loaded and while plaintiff was in the discharge of his duties the defendant carelessly and ne- gligently , without signal or warning , ran_one of its engines and tenders rapidly over said track, and against the car in which plain tiff was at work. That said engine and tender struck said car with great force and violence , knocking said car down its.track and causing plaintiff to be hurled with great force to the floor and against the end or side of said car, fearfully and painfully bruising and wounding plaintiff about the head, neck, shoulders back and right arm. --Fourth-~- That by reason of defen‘ants careless and negligent running of said”engine and tender against suid car as aforesaid, plaintiff has sustained painful, serious, and ae he is informed, permanent injuy That for one month after said injury plaintiff suffered grently, was unable to rest and was confined to his bed under the constant care of a physician; that for two months he could do’ no work and that he still suffers pain in his shoulder, neck, back and right arm, to such an extent that he cannot use said right arm, and he is advis- ed and now avers that he is permanently injured, and by reason of said injury hag’ suffered great damage, to ik. Two Bhousand Dollars, ($2,000.00). Wherefore , plaintiff demands Judgment against defendant for the sum of Two Thousand Dollars, ($2,000.00) damage, for the in- jury inflicted upon him by the negligence of the defendant as afore- said, and for costs of action to be taxed by the Clerk of this Court. U4 Spr in VAP Grin : Attorneyrfor Plaintiff . 4 Peter wi choliee“Coing duly sworn , deposes and says, that he has read the foregoing Complaint and the sane is true as of his own knowledge, except as to those matters and things stated therein upon information and belief, and as to those he believes it to be true. Swotn to and subgcribed to »be- rore be this the 43 ay of -*%--~-",1906. * Worth Carolina , In the Superior Court Iredell County | November Term, 1906. Peter NWieholeon vs Southern Railway Company The defendant answers the complaint in this ease and for answer says: --Pirst-- That it is a corporation duly and or@ginally ercated, or ganised and existing under and by virtue of the laws of the State of Virginia, was and 4s in possession of, owning , oper ating and controlling a line of railway from Salisbury via Statesville to Asheville and other points; said railway is properly equipped with ears and appliances and is engaged in- the business of a common earrier of freight and passengers fp fer hire. --Becoond-- fhe plaintiff having failed to give any date definitely won which the alleged injury cecurred, this defondant is unable to answer the second paragraph of the Complaint intel- ligently, and ther:fore denies the same. | > + ° ' a - = * --Third-- That the allegations emtained ig the third paragraph ef the Complaint are not true and are dened. --Fourth-- That the allegations contained in the fourth paragram of the Comlaant are not true and are denied. * and for a further answer to plaintiff's eause of aetion, the defendant sayst --pirst-- That if the plaintiff was injured at the time and place as alleged, that said injury was br cught about by the eare- souantke and negligenee of te plaintiff in failing to sit 4d down ton the earth in the oar, or alighting from the car prier to the impact with the engine, as he could have done. \ --fecond-- | 7 That the plaintiff was guilty of eontributory negligenes 4n not sitting down upon the loose earth in the car, er in not getting off the car when he saw that the car was about to be stricken by the engine coming back to couple therete, ee he could and should have dame, if said engine was about to strike the ear with foree and viclenee, whieh is herein denied. And, having fubly answered the defendant asks that it g® henee without day, and r cover ite costs in its behalf expend ae Cot Srsete orney Lor * » veing duly sworn, deposes and 4. says thet he is the Loeal Agent, of the defendant Company, at Statesvitic, Serth Gerclina, that he has pead the forege- ing Answer , and thit the sane is true te his own knowledge, exeept those matters and things, stated therdn on informa~. tion and belief, and as to thoes he believes it to be true. renee cS OTL TEIN, Sworn to and subscribed to before me *+bhis ¢he -°--- day of Oe OPS SHSM OM 1907. LLL Worth Carolina Superior Court ey Somme foe Iredell County January Term, 1906. Mrs. Hattie G. Kyles, Plaintiff, I vs COMPLAINT. Southern Railway Co., Defendant, The plaintiff complaining of the defendant , alleges and saysi- --First-- That the defendant is a corporation duly organized and ex- isting under and by virtue of the Laws of the State of Virginia, and at the time hereinafter named was engaged in the business of a com- mon carrier for hire in the State of North Carolina, and was in con- trol of and operated a line of railway in said State, extending from the City of Salisbury, North Carolina, to the city of Asheville, North Carolina. | --Second-- That on or about the ---- day of -----<---------- » 190¢- the plaintiff intermarried with one B. &. Kyles and said marital ~ relationship existed until the death of the said B. A. Kyles on the 19th, day of January, 1905. --Third-- That, as plaintiff is informed and believes, her husband was on the night of the 19th of January, 1905, carelessly and negli- gently run over and killed by one of the trains of the defendant Company -en sts line of railway from galisbury, N. C. to Asheville, a8, about 4 miles West of Salisbury. =-Fourth-- That after the said B. A. Kyles was killed his dead body was lpging upon the track of the defendant, Southern Railway Co., at the point above designated and described, and the said de- fendant instead of removing the same from its said track and gather- ing up his mutilated remains and shipping them to his home for buria¥ 4 carelessly , recklessly, negligently, wantonly and wilfully per- mitted and allowed the said body to be and remain upon &ts said track at and near the place aforesatd from 9 o’clock P. M. of Jan- uary, 19, 1905, until 6 o'clock P. M., of January 20th, 1905, un- guarded, unwatched and unprotected, and in the meantime carelessly, recklessly, negligently, wantonly and wilfully caused , allowed and permitted 15 or more of its trains , both freight and passenger, to run over and further tear, crush, mangle and mutilate the lifeless body: of plaintiff's husband, until it scarcely bore human resemblance that 6 o'clock P. M., on January 20th, 1905, the said defendant under took to gather up the scattered remnants of said body, and did col- | lect a portion thereof, which it caused to be shipped to the, home of! the plaintiff's wife for burial, and the same was buried; put, in- stead of collecting all of the remnants of said body, as it was its duty to do, and as it could and should have done, by the exercise of ordéimary care, carelessly , recklessly , negligently, wantonly and wilfully collected only a portion thereof, and allowed and permitted other portions to be and remain.scattered over its track and right of way, uncollected and unburied, and there the said portion remained , a@ prey to the vultures and dogs, until nearly one week afterwards, ‘the father of the said B. A. Kyles, learning he horrible truth , visited the scene of the tradegy and collected togetker the said fragments, which were still undevaured by the vultures and dogs, and carried them to the home of this plaintiff, where she and the other sorrowing members of the family of the said B. A. Kyles, caused his new made grave to be opened and said fragments placed therein. --Fifth-- That, by reason of the gross indignities offered the lifeless body of the plaintiff's husband by the defendant, and the mutilation of the same caused by the careless , reckless, negligent, wanton and wilful runn’*,; of its said trains, backward and forward, over the said dead body of plaintiff's husband, and its careless, reckless, negligent, wanton, and wilful failure to cellect together the broken fragments of said dead body, but allowing them to. remain exposed to the vultures and dogs, as aforesaid, the plaintiff has suffered great wrong and injury to her damage, Twenty-Five Thousand Dollars. Wherefore , plaintiff prays judgment in the sum of $25 ,000 and the costs of this action, and such other and further relief as she may be entitled to. Attorneys ror Plaintiff. Hattie G. Kyles, being duly sworn, deposes and says, that the foregoing complaint is true of her own knowledge, except as to those matters and things stated on information and belief , and as to those matters he believes it to be true. Sworn to and subscribed before me this the --- day Of ---9n rrr errr nnn = hec=—s a nme! Pee ne ra : g apes SS a XN t eR CE 2 a Form M74. SouTHERN Raitway Company e 4 LAW DEPARTMENT. Hallie G. es v. Seuthern Railway Cempany. Tredeil Superior Ceurt. Charlotte, N. C., October 31, 1905. L. C. Caldwell, Esq, Special Counsel, Statesville, N. C. Dear Sir: I hand you herewith notice of suit and summons in above enti- | tled action. It is in connection with, or in some way bears: relation toward, the death of B. A. Kyles, Ex-Agent at Eufola, N. C., who was killed by train Ne. 12, it is supposed, near Barber's Junction, N. C., January 19, 1905. Messrs. Armfield & Turner represent the plaintiff. Please write me immediately what the suit is about. Yours very t = « Division Counsel. SouTHERN Rat_way Company ALrags Pp. THom, . : LAW DEPARTMENT. General Counse} at Washington. Washington, D.C., O¢t.26,1905. HATIIE G. KYINS v. ao.Ry.Co. (2°.C.) Col. W.B.Rodman, D.C., charlotte, “36, Dear Sr: | | I am enclosing Asent's notice of suit, dated at Statesville, | 24th inst. Summons is dated Oct.24th, was served on-same day, and it is . ~~ o . Neate meg ls ty . ; 5 ry -returnatle to Ireéell Superior Court, on Jany:. 29, 1906.... - The summons £¢ ““gerved is attached-to the notice, < The agent states that he does not know what complaint is made in this case, but he assumes that it is the same as that made in "forner suit of" GC. A. Kyles, Admr. of T.A.Kyles." You will please return report of suit on form 1451. Very truly yours, General Counsel. SouTHERN Raitway Company LAW DEPARTMENT. ALFRED P, THOM, General Counse! at Washington. 8 Washington, D. Gas 26 1908, HALLE G, KYLES v, se RyGc. (380) W. B. Brow, Esq., Agent at Statesville, N.C. Dear Sir: | I have your notice of auit, together with summons served on you, in above entitled nuit. I forwarded you on Saturday last (2lst inst.) Law Department's “circwlar No.4°, announcing sppoiniment of Mr. W. 3B. Rodman, of Charlotte, as pivision Counsel of the state of North Carolina, You had not yet received the notice,and seemt I take if, else you would have given notice te Cel. Rodman, I am again inclosing with this letter, said circular No.4. You will know now to whom the summons should ge. And the Hand Beok shows to whom notice of suit should be given, the only variance from the rules appearing therein, being that no notice of suit is not given to Ansiotent General Counsel, but the Agent gives it to me, instead of the Assistant General counsel, very truly yours, ES General Counsel, ¥W.B.Ro ‘ Division gounsel, o “ SUMIIONS FOR RELIEF.—j)Judge.—Printed and for Sale by Brady, The Printer, Statesville, N. C. 3-29’011M SUMMONS FOR RELIEF. State of North Carolina, To the Sheriff of... LALLA ce ot ty—GREETING: : | | above named, if ae er be found jwithin your County, to be and appear beforgthe Jidge of our Su erion rt to be held for the County of ......C/AXLEA at the Court House in CLE Monday ar pt ars Monday of eee was x same being the 24 . ay Mf6on. and answer the complaint, a copy of which will be deposited in the office of the Clerk of the ekiér Court for said County, within the first three days of said Term, and let said Defendunt........ take notice if ................. fail to answer to the said complaint within that time, the plaintiff, ee will apply to the Court Sor the relief demanded in the complaint. — " . 3 Hereof fail not, and of this summons make due return. (Oy ; Given under my hand and seal of said Court, this VY ° STATE OF NORTH CAROLINA, In the Superior Court. es ae ..... COUNTY. * \ Sree bergerecesccseeceesreccceeysaprectesccseessesesterucees Teeeeeeeeeenswanennsaccnneseeeeeerassenseanmwnnasenseesetennaaseesenerennsenieessaesaseneesranesertaeeseranteeeeageetereres and above his debts, liabilities and property exempt from executions. Sworn to and subscribed before me this ............. day of ............ fener paperanian tags 190...... |. Foe : | id po ls ¢ Do — pe ox | c= ha } i 3 rx ° f e } = |e | 7 > “Cao 2 } : — « & } | —re | ‘ os QD «= ~~ na) = §£ 9 ge] ois Bp rP5> 2s § SB oe ow fs slld 3 H. = ...County. Plaintiff's Attorney. We acknowledge ourselves bound unto... 2.---.ec.ecscceessseeeesseeeesseseesveeevsviesssecesssvessssusessssuseessusessuuunussesanesessusesssnvessssnssssnesessanecesnnee the Defendant in this action, in the sum Of 0.0.00... cccccscsccsccssessessessesuesecssessessessisssesucsuecseeeeeeee. Dollars, to be void, however, if the | PUG oc cesaeesesnennencnnsecnneee Tesacnecsevecssnecenueseveceecucsesieressueeecuteeeneesenees shall pay the Defendant........ all such cost as the Defend- ce may recover of the Plaintiff.......... in this action. Witness our hands and seals, this _.........0:........ DAY Of, nea eeaecaeeseenecveceesnesneenncnssneeneesnseneeones A. D. 190..... being sworn says he is worth the sum of two hundred dollars over * 3-7—03 10M. : : Form 1455. (Revised 3—5—'03.) SOUTH ERN RAI LWAY COMPANY. Southern Railway Company in Kentucky. Southern Railway Company, in Mississippi. Memphis and Charleston Railway Company. -Northern Alabama Railway Company. Augusta Southern Railroad Company. NODICE OF SUIT... a ~ {4] Summons, dated the... day of. fe o’clock. M., in a suit brought by on ‘against & J. P. The summons left with me by the officer was this day forwarded by me » Local Coumset atti. cccssssssssussssscsesesunssesensesneeseenas - (ff no copy ). Said suit is on account of [as None Left.” } [Give here the date and place, and state cause connected with the complaint or datiage for which suit is brought. If for Freight 2 Claim, give Way- Bil reference and Claim ape if known.) Amount sued for is $2.0 ccccccceeeceeeceeceeeeeeeee Agent. f2] Summons, dated AL in day, of... “Oe se ace 190.2, together with declaration, pels, was sepyed On me’ to-day at 13.0. o'clock :.M., in the suit brought by. essence a .against & i | seg County A Ob Dkr his d&y forwarded by hn Off Zz twill so state here: Ewa wi fe {“Mome Left.” Sat Kerr det Dhescah, Le Anite an Pata 8B Asake RR Adin ¢ OAK 0 g [Give here the date lwhd place, pnd chbapdimas comberied with the compete f damage for h suit is brought. If for Freight ). Said suit is-on account of aim, give W. m number, if known.) -™ rs ST Amount sed for is §_VAA2- *If no — or iuaeie: ‘was served erase, he phrase “ together with declaration, petition or complaint.” : SEE OTHER SIDE FOR: woe ee nt. a; ATTACHMENTS AND GARNISHMENTS.—The Agent will report same by wire to Treasurer and Division Superintendent. The writ of attachment or Garnishment served on Agent should be immediately sent to the Division Superintendent. Also notify Local Counsel, using this form INSTRUCTIONS, The Agent will observe and obey instructions contained in Hand-Book relative to “ Regulations as to service, etc., of Law Papers.” . Notice of suit must be given and forwarded on same day that summons is served on Agent. Notice of suit must be separately given in every case to— (1) Division Superintendent ;, (2) Assistant General Counsel; (3) Division Counsel; - (4) Assistant Division Counsel ; (5) Local Counsel; and (if for stock killed or injured on track) (6) Stock Claim Agent. Note.—A list of the Company’s Counsel will be found in the Station Directory. Summons i in Justice Court cases must be sent to the Company’s Local Counsel for the county, or station therein, where Agent is located. _ (Note Form 1, other side.) Summons, together with any declaration, petition or complaint served with same, in all cases brought i in the higher courts, must be sent to the Company’s Division Counsel for the State wherein Agent is located. (Note Form 2, other sidé.) Be sure to FILL BLANKS—IMPORTANT. And be sure to give name of plaintiff (party suing) and the title of defendant railway (corporation sued) exacély as same appears in summons. AGENT will make REPORT to ASSISTANT GENERAL. COUNSEL of ‘Company, on form given below, stating to whom notice of suit has been given and forwarded. “Cf GENT’S REPORT TO ASSISTANT GENERAL COUNSEL. GEN’L Counsgt, ALEX. P. HUMPHREY, Ass’r GEn’p, Counser, : Son. R’y, E. and W, Dists., N. Ala. R'y Co., Aig. Sou. R. R. Co., Sou. R’y—St. Louis-Louisville Lines, Washington, D.C. Louisville, Ky. bar To Ass’T Grn’. CounsEL: Notice o “ n Form 1454 is given herein, Like notice of the within-mentioned suit was also this day given © 1 VQtasve Division Sup’t at the tttht. AA ES Division Counsel at Ass’t Division Counsel at. AGAINST NOTE. Division Counsel shall give the Law Agent notice of this Suit. Southern Railway Company OFFICE OF SUPERINTENDENT Asheville, Oct. 27, 1905. feh. “Mr. M. M. Richey | Asst. Gen"l Supt. | Birmingham, Ala. Near Sir: Notice of suit dated Oct. 24th, 1905, served on the Agent | at Statesville at 1-30 PM, Oct. 24th, Hallie G. Kyles Vs Company, anewerable in superior Court of Iredell Coumty, North Carolina on the 29th day of January, acco nt mental anguish, she being the wife of R. A. Kyles killed at Majolica, N. C. on January 20, 190. Anount of suit not stated. See my letter dated January Slat, 1905, Class 3, No. 89, reporting this acc ident. My file on this case was gent Col. Chas Price, May 17th, in connection with suit pronght by C. A. Kyles, adminis- trator of estnte of B. A. Kyles. Yeurs truly, Superintendent a COPY Al Messrs. Than, Dooley, Rodmari, Kennedy. 3-7—03 10M. - Form: 1455. (Revised 3—5—'C3.) SOUTH ERN RAILWAY COMPANY. Southern Railway Company in Kentucky. Southern Railway Company in Mississippi. Memphis and Charleston Railway Company. Northern Alabama Railway Company. Augusta Southern Railroad Company. NOTICE a sUuUIT. SLL [Insert here the name of the Company sued exactly as it appears in the summons ] Trial day is fixed for the vee LQ. csonerereees o’clock 7 ” j. FP. The summons left with me by the officer was this day forwarded by me , Local Counsel at.. : . (Ff no copy of summons was left, Agent will so state here: BOF cesses) Said suit is on account of [ ‘* None Left.” ] . iSive) here the date and pact and state cause connected with the complaint.or damage for which suit is brought. If for Freight Claim, give Way-Bill reference and’Claim number, if known.) ® {2] Sammons, dated theo Me... day of Of t_. a 1908 together with declaration, — or Jans served on Fl fit clock. Ft RAIL 44/844... COMPANY sert here the name of the MA exactly as it appeafs in the summons.] I sie hereon Court of..., OO County to be answered on ve 24 _ day of..: i a 190k» T The summons, tegetrer—with fi aa int this day monet se Of’. Owe oO . sion Counsel at Atlee wa oe Bevy no copy of summons a | $ was left, Agent will so state here: ). Said suit is on account of C' a Left. o ‘achat lave Anke ga hen tc acferezan Kerr. : . - CoM. OKsdea fee. V ive ene Oo. a Atk and place, a Eni cause connécted with the Radia or damage for which suit ia brought. If fi giye Way- reference and Claim num if known.) sh war ; “e “If no-petition of complaint was served erase the phrase “together with declaration, petition or complaint.” SEE OTHER SIDE FOR INSTRUCTIONS... — . ATTACHMENTS AND GARNISHMENTS.—The Agent will report same by wire to Treasurer The writ of attachment or Garnishment served.on Agent should be immediately sent to the Division Superintendent. Also notify Loca! Counsel, using this form and Division Superintendent. ~ INSTRUCTIONS. The Agent will observe and obey instructions contained in” Hand-Book relative to “‘ Regulations as to service, etc., of Law Papers.” Notice of suit must be given and forwarded on same day that summons is served on Agent. Notice of suit must be separately given in every case to (1) Division Superintendent; (2) Assistant General Counsel 3 (3) Division Counsel; (4) Assistant Division Counsel ; (5) Local Counsel; and (if for stock killed or injured on track) (6) Stock Claim Agent. NoTs.—A list of the Company’s Counsel will be found in the Station Directory. Summons in Justice Court cases must be sent to the Company’s Local Counsel for the county, or station therein, where Agent is located. (Note Form 1, other side. ) , Se together with any declaration, p petition SF complaint served-with sames in in'all Gages brought ‘in: the higher courts, must be sent to the Company’s: Division Counsel for the State wherein Agent is located., (Note Form 2, other side.) , ; Be sure to FILL BLANKS—IMPORTANT. And be sure to give name of plaintiff (party suing) and the title of defendant railway (corporation sued) exactly as same appears in summons. AGENT will make REPORT to ASSISTANT GENERAL COUNSEL of Company, on form given below, stating to whom notice of suit has been given and forwarded. J / , Ke AGENT'S REPORT TO ASSISTANT GENERAL COUNSEL. GeEn’L COUNSEL, ALEX. P. HUMPHREY, Ass’r Gen’L CounsEL, Sou. R’y, E. and W. Dists., N. Ala. R’y Co., Aug. Sou. R. R. Co., Sou. R'y—St. Louis-Louisville Lines, Washington, D.C. Louisville, Ky. ba@s~ To Ass’r GEN’L CouUNSEL: : ‘Notice of Suit on Frm 1454 is given herein. Like notice of the within-mentioned suit was also this day given re aN Division Sup’t at. Cth et “2 40) Division Counsel I at Choa thle BACs ae Dated ccc id FF ff . “Asst Divisio Couasals at a - HK. Colt’ Ap Counsel at_ and (being a Stock Suit) to Stock Claim Agent at Crevice \ AGAINST Division Counsel shall give the Law Agent notice of this Suit. =. Qe THE CIRCUIT COURT CP THR UNITED STATES VOR THE WESTHIO DISTRICT OF WORTH CAROLINA. AT STATRSVILIZ« Mrs. wattio G. Kyles, Plaintift, i va { ANS@WRRe seuthern Refdiway Compzny, Def ndant { The defen.ant Ansvers the Complaint in thin action, “a for answer saysa3 | o-Virst-- i Tiat it 4s a cerpora-ion duly ,originally oreatod . @enisod and oxiting under and by virtue of, the Laws ef the Sta:e of Virginia, was and is enga;ed in tho business of a common carrior for bire in the S@ate of North Carolina, 0 trols and operates a line of railway from selicbury , He Cs via Statesville, to Ashovillc, N. C. and westward. aS -oocond#- That 4t Ras not sufficient kmowlodge or information upon which to form 5 belief as to the truth of the allegsti' contained in the second paragraph of the Gompisint, and thorefore demands proof of the ear’, --Thirde< | That the allegations contained in tho third paragraph of the Gom laint are not true and are denicoda eePourth=-= That the allegaticne contained in the Fourth meer of the Gon laint are not true and are donied. --fifth--. Phat the alleg tions contained in the rifth parsgrapl of the Complaint are not truo and are donicd. a u And for a furt>or answer and cefense to plaintifrts cause of notion the defen ant Anyss --Pirs te- Tost, Af Be Ae Kyles was killed ty the cars cf tho doe | fondant, hin death ns econsiocned by his own nosligence and | @arelecsness in placing himself se noar to the track of the am fondant, ap to bo strickon ty a panning train, and if hin | body was mutilated by said train or trains, the ‘pame vas onusp ea by his em neglirence and carolesonons in Ppl-cing him-rolf where he would be stric’on and knooked “pon the trnok, and his body mut@lated by n o2r or oars of the cefondante “-So0ond~— That 1f Be As Kylen was utileted by the running of o jover hia body the Sane wan caused by the carclocsnore and mo neo of said Be. Ai Kylos, in falling off and meer the oars on which ho was riding, in his attempt to got off a rapidly | ovine traine without any knowledge pen the part of the dee onda te And heaving fully answerod the defendent asks that it re- gover ites costs in its behalf oxpended, and <o henee without {7° We Be “rown, ‘being duly sworn, that he is the Leeal Agont for the defon‘ant Company, at Scaterville, He Ce,y that ho has é the fcregoing Answer and knows the sane to be true as of tT om knowledge, except an to those things atated therein al pon information and deliof, and as to those he bdeliocves b to bo true, | rr Eee °| D to and subscribed before me this “ | oman day of SOR etonnmnwmae » 1906. eee ACC TN RS Mrs. Hattie Myles Vs Southern Railway Co. Copy of Answer for Office File. Railroad Records 1906 o “my en SUMIIONS FOR RELIEF.—Judge.—Printed and for Sale by Brady, The Printer, Statesville, N. C. 3-29-'011M ALEL __ County.~-In the Superior Court. AGAINST SUMMONS FOR RELIEF. fail to answer to the said complaint within that time, the plaintiff.......... will apply to the Court for the relief demanded in the complaint. Hereof fail not, and of this summons make due return. Given under my hand and-seakof-anid-Comrt, this ..... LA... day of 5 STATE OF NORTH CAROLINA, ‘ dm the Superior Court. ant... é ---e maypregover, of the: Plaintiff.::..;> in this action. ~~ - _ Witness our. hands and seals; this’: LL... day of .. above his de fs, abilities and property exempt } from executions. ‘Sworn te and-subscribed before: me this LE. day of =: att OE. . ie x Sqeakceogiy ceed of ve s oO Z : a ; ; — ‘ rs : 3 ra: 7 <3 . : ere . 5 A ? . : : -s : : ‘ ; : 3 : i = ie oh Returnable’ to Plaifitiff’s Attorney.’ 4" Wl eg te an aon ‘4 { ' North Carolina # In the Superior’ Court. Iredell County # . January Term 1905. M. V. Marable _ # | ° 4 VB. ¢ Complaint. Southern Railway Company # fhe plaintiff, complaining of the defendant, alleges:— First:- That the defendant is a corporation created and organized under and by virtue of the laws of the State'of Virginia, | and doing business as @ common carrier of freights and passengers for hire in the State of North Carolina. | Second:- “That at the time hereinafter mentioned, to-wit: on or about the 28th day of September 1904, the said defendant was in Wis control of and operating a certain line of railroad extending from Charlotte, North Carolina by way of Concord, North Carolina and Landis, North Carolina and on by Salisbury, North Carolina, and on said day the said defendant was. engaged in operating its train upon said road by means of its agents and em ployees, upon which passengers were being transported. Third:— That on or about said 28th day of September 1904 the said defendant ran its train over said road “oe Charlotte on toward Salisbury, which train left Charlotte about 1:30 o'clock P, M, om said day; tliat the plaintiff in this action became and was a passenger on said train on said day, he having purchased a ticket from the defendant's agent at Charlotte; that the plain- tiff boarded said train with said ticket at Charlotte, intending to go to Landis, North Carolina, which was one of the defendant" a stations on said road between Concord and Salisbury, North Carolina, Fourth:— That on said day at a point on defendant's road a short distance after the said train had passed Concord and while the plaintiff was yet a passenger on said train, seated in defend- ; ‘ Kitt ant’s ocar.on the right hand side of said car and near the front end thereof, and without any notice or warning to the plaintiff, ‘ the said defendant and its agents in aharge of said train, negligent~ — ly, reoklessly and without the exercise ef due care, permitted ‘“ - t J Yar ~ “ ~ » iy » 4 oh %, sale eatin RE eee oo i oh Lied a ’ and allowed the ssid train and the oar in which the plaintiff was @ passenger, suddenly and violently to stop, while the said train was running at a rapid rate of speed; that the said defend-— ant and its agents thus negligently, recklessly and without the | exercise of due care on their part. permitted and allowed the said train which was running at a rapid pate of speed to suddenly stop, without any notice or warning to the plaintiff and with such suddenness, violence and with such a terrible force and jar that the plaintiff was hurled headlong from his position where he was seated in said car as a passenger and hurled forward with great force and violence against a stove stationed in the end of said car; that in the act of being thus violently thrown olaintife’s shoe heel was knocked off in some way not known to the plaintiff and the plaintiff hurled violently against said stove, his right forearm striking said stove, which was violently and severely mashed and bruised, | . | Fifth:— That the plaintiff was thus violently thrown and injured by the defendant while he was a passenger on defend~ ant’s train and seated in said oar where he had a right to be, and without any warning on the part of the defendant or fault on the part ‘of the plaintiff; that said sudden and violent stoppage of said train which resulted in the injury to the plaintiff as aforesaid was due to the gross negligence of the defendant: (1) That the defendant was negligent in that it failed to exercise due care and permitted and allowed the said train under its con- trol and upon which the plaintiff was a passenger to come to such a sudden and violent stop as to hurl the plaintiff and injure him as alleged in paragraph four hereof; (2) That the panies was negligent in that it failed to have upon said train on said day a sufficient mumber of skilled and competent employees to properly and safely manage said train and to prevent — the violent seegpage stoppage of said train which violently threw the plaintiff and injured him as alleged in paragraph four hereof; (3) That the defendant was negligent in that it failed to have said train on saiddey equipped with safe and sound machinery and appliances, and as a result of such failure and negligence, permitted and allowed the injury to the plaintiff as aforesaid;(4) That the defendant was negligent in that it had ite said train on said day equipped with unsound, unsafe and defective machinery and appliances, which fact was known to the defendant or should have been known to it, and as a result of such defective, unsound and unsafe machinery and appliances the said train was permitted and allowed to suddenly and violently stop with such terific force and jar as to hurl the plaintife headlong and injure him as alleged in paragraph four hereof, all of which was due to the gross negligence and the failure to exercise due and reasonable care on the part of the defendant, Sixthi- That the plaintiff at the time of his injury was only 51 years of age and was a strong, healthy man, but by reason of the shock to his muxxkeuuxsyukam nervous systen, Gaused by said injury, his health has been impaired; that inme— diately after said injury for three or four weeks plaintiff was under the treatment of a physician for said injury; that plain-—- tiff suffered mich pain for three or four weeks after said injuy during which time he could not close his hand; that his arm and hand continues to pain him still; that he suffers with stiffness and numbness of his hand and arm, and the plaintiff is advised and believes that his arm and hand are permanently injured; that for several weeks after said injury and while plaintiff was suf- fering severely on account thereof he could not sleep; that plaintiff lost moh sleep on account of said injury — his pain and suffering; that the plaintiff cannot sleep well yet, due as plaintiff is advised and believes to the shock to his nervous system caused by said injury and the pain which he still suffers on account thereof, whereas, before the said injury, plaintiff was sound and free from nerveugness and was a good sleeper; that plaintiff is a minister of the cogpy} saps is presiding elder of the Methodigt church for the f@isatstts distriet; that in the discharge of his duties in this ocpacity he is required to do a great deal of writing in preparing his sermons and report q; | that prior to said injury to his right arm and hand plaintiff could write with ease and rapidity; that since said injury on account of the stiffness and numbness of his arm and hand, plaintiff can scarcely write at all, which is a great disadvantage, 4neonvenience and loss to the plaintiff; that it is also diffi- cult for the plaintiff, having practically lost the use of his right arm and hand to guide and manage his horse as he drives from place to place over his district in the discharge of his duties, Seventh:— That by reason of the negligence of the defendant as aforesaid and the injuries resulting therefrom to the plaintiff as aforesaid, the plaintiff has been greatly damaged by the defendant in the sum of Two Thousand Dollars, | Wherefore, the plaintiff demands judgment against ; the defendant for the sum of Two Thousand Dollars, and for the M. V. Marable being sworn says that the foregoing complaint is true to his knowledge, except as to those matters and things therein alleged upon information and belief, and as to those matters and things,he believes it to be true. Sworn to and subscribed WY Wn SS before me, this the 9th March 1905, day of North Carolina In the Superior Court Iredell County January Term, 1905. M. Ve. Marable vs Southern Railway Co. "he defendan+ answers the complaint in this eause and says: -First- That it is a corporation duly and origina'ly created, organ 4zed and existing under, and by virtue of the laws of the State of Virginia, and was engaged , as a cormon carrier of passengers and -« freight, for hire at the tine elleged in the Complaint. -Second- The allegations contained in the second paragraph of the " Gomplaint are admitted. -Third- « Te allegations of the third peragraph of the Complaint are admitted. -Fourth= The allegations con‘ained in the fourth paragraph of the Complaint are not true and are denied. “Fifth. | The allegations contoined in the fifth paragraph of the Complaint are not true and are denied. ©” coleigheall™ 7 niall tanga -Sixth- The allegations contained in the sixth paragraph of the Complaint are not true and are denied. -Seventh=- The allegations conteined in the seventh paregraph of the Complaint are not true and are denied. And for a further answer and defense to plaintiff's cause of action the defendant sa;z7s:- First:=- That the plaintiff in order to secure reduced kates, 4s & passenger over the defendant's lines of railwav- aj) plied to the defendant for an"Annual Clergyman's Reduced Rate Permit", for the year 1904, which Annual Clerg:nan's Reduced Rate Permit" was is- sued to, and used by the plaintiff- and contained the following stip ulation, agreement and contract- "In consideration of the reduced rate granted by this permit, the ovmer assumes all. risk of damages and accidents to person or propert:r while using the same", Second: That upon the day named the ;.laintiff was In the pos= session of , and produced said Annual Permit, before the ticket agent at Charlotte, N. C., for the purpose of securing reduced rates, and by reason of the stipulation, agreement and contract therein and above set forth, the plaintiff received reduced rates for “iis transportation on said date from Charlotte, N. C. to Landis, N Te C., and the defendant is advised and helieves that it is not liable to the plaintiff. Having fully answered ~- defendant asks that it recover its cost in its behalf expended and go hence without day. ac Tor Ck Fcc EO Ww. B. Brown, being duly sworn says, he is the agent of the defendant company at Statesville, N. C.; that he has read the foregoing Answer ; thet the same is true as of his own knowledge, except as to matters and things therein stated upon ‘ntormation aud as to those matters and things, he believes it to be true, Sworn to and subscribed »vefore me the the “4-- day of March 1905. New — Civil Subpeenai—ror SALE BY THE MASCOT JOB OFFICE, STATESVILLE, N. C. SEATE OF NORTH: CAROLINA, Go the Sherttt of /(HuW Milly a aoe YOU ARE HEREBY COMMANDED oe RL AKKO ALL ah personally to appear before the Judge. of Superior oe Z the next Court tobe held for our said county at the Court House in _ on the | 6. WO __.... Monday Defendant WITNESS , fla: aowey LO, pet ‘Sy iy ll f Ze oe A ye HUY Pens “von IAI) eae te Ate a —— — ——— Se me | 8 CIVIL SUBPOEN A,.—Printed and for sale at the CaroLina Mascot office, Statesville, N. C. State of North Carolina, To the Sheriff of (74/4 £4..........County--Greeting: YOU ARE HEREBY COMMANDED TO SUIIFMON....... 2X, AK, t ' Lahey. Son personally to appear before the Judge of Superior Court, at the next Court to be held for our said county at the Court House in Chl on the= « in a certain controversy before said Court depending, and then Me there to be tried, wherein AY, Lhall oY Plaintiff..., and... Defendant And this you shall in, no wise omit, under the-penalty prescribed by law. WITNESS, Clerk of our said Court, at office in...g ULL ns Clerk Superior Court... County. | | | | | | \ North Carokina Superior court | Iredell jounty January perm, 1906. M. V. Marable, vs AMENDED ANSWER. Southern Railway Co., & The defendant by leave of the Court obtained at the January Tern, 1906, of the Tredell Superior Court amended its) | answer, and for a further Answer to plaintiff's cause of ac-| tions says ; --First-=- |That the plaintiff by placing himself at a position in said car where he ought not to have been , namely, sitting on the | edge of the coal bin, when there were ample seats in said car for him contributed to and brought upon himself the injury complained of . --Second-- That the plaintiff was guilty of contributory in sitting p epen the edge of the coal bin instead of sitting upon the : seats provided in said car for persons to sit upon. AAnd having fully answered the defendant aske that it- recover its cost in its behalf expended, and go hence witho ub| | Gay « Attorney for Defendant, W. B. Brown, being duly sworn says, that he is Agent fo! the defendant Company at Statesville, N. C., and that the | foregoing Answer is true as of his own knowledge, except as those matters and things stated therein upon information and belief, as to those he believes 1 rue. a Sworn to and ,subscribed before me Pa this the -~/-- day of February, 1906. a M. V. Marable V8 Southern pailway Co. Amended Answer. Marable vs Southern Railway Company Special Instruction asked by the Defendant. When the plaintiff in this action produced his Minister's Annual Permit, and there by obtained a ticket at a reduced rate, the condition endorsed on said permit, that the user of the same woul assume all risk of accident and darage to his person, was an agreé=- ment between himself and the defendant Company, that the common law which made the railroad commany an insurer of his safety, nena be set asidd, aud that he oe be bound by the agreement between himself and the defendant under the law, defining the duty and lia- bility of the defendant Company, in takeing him to Landis , his destination. | This was a valid agreenent but it does not relieve the defendant fram liability for negligence, if there was neglisencee If injury resulted to the plaintiff from nefligence of the defendant, after such agreement was made, the plaintiff, having taken himself out of the protection of the common law rule, which made the com- pany an insurer of his safety, and which in case of accident, re- sulting in injury, presumed negligence, must show affirmatively, as in all other cases, the specific negligence complained of. . Under this rule of haw , the Court charges the Jury, that it is not only the duty of the plaintiff , to show to the sat- isfaction of the Jury, that he was a passenger on the train as al- leged, and that he was injured, but he must show, by the greater. weight of the evidence, the manner in which- he was injured, and the cause of his injury; that negligence existed . He must show this matively, no presumption arises in his behalf, fand the Court 4 charges the jury that the plaintiff having failed to show the reason 9f his injury, that is,the manner in which it occurred, and the act or thing that caused it and that the same was neglisence, he is not LS a entitled to recover in this action and the Jury should answer the. first issue "No". --Second-- When as above stated, the plaintiff took passage on the freight train, and was travelling upon it, he acquiessed in any) Uae. accident and conduct of a freight train, if managed by pradent, c an= G Ww O Prndil bad Cougue 12 garner 4 petent ne that in the movement of this freight train, if the sork- we ing was unadvoidable and such as ordinarily occurs on freight trains, the same would not be ascribale to negligence or want of skill or improper management on ae part of the asents of the Company. When / the plaintiff took passage, as aforesaid, ne could not expect, and the law would not allow him to expect , the defendant to provide its freight train with all the conveneinces 2nd safe guards against danger, thatare required in the operation of passenger trains, and it would be the duty of the plaintiff to take ordinary care of him- self; if danger was apparent or expected, it would be his duty to see it, and know it; that it is pedper for the passenger to remain Low & in his S28), and especially is this true, when riding pe es ee 7 Hy) and if the jury ould find that this train was nese in the Cee or way,manned by competent agents and the jolt or jar, een the plain- tiff alleges injured him, was incident to the character of the train, and because of the jolt and jar the plaintiff was thrown cae and injured, he would not be entitled to regover , and it would be the duty of the Jury to answer the first issue "NO". --Third-- A caboose attached to a freight train does not furnish all the appliances and conveniences for the safety and comfort of pas- sengers thatare provided for passenger trains, and while it is the duty of the Company cary ing passengers on such train to exercise every reasonable care and take every precaution against injury, or danger to the life of such passengers, which.the appliance of that mode of transportation will admit of, it is also the duty of the passenger who travels on said tain with a full knowledge of the in- creased risk Preveapial thereto to be correspondingly careful in guarding against injury, by reason of the risk incidental to such moc mode of travel. An act may be neglircent or not, according to the attendent circumstaces. An act, on a regular passenger train, with air brakes and other appliances to secure smooth, comfortable and safe travel, may not be negligence in »-a passenger, while the same act donw by the passenger in a caboose attached to a freight rain might be careless and negligent. The passenger on such a train assimes the ordinary risk and disconfort incident thereto, and if the train is managed with such care and prudence by skillful and con-, petent employees as to subject him: only to discomfort and risk ty thus etcent the company would not be liable for any accident, the company would not be liable for any accident reswiting therefron, by reason of the failure of the passenger to show usual and ordinary care, and if the Jury should find from the evidence that the jerk and jars were incident to the freight train, were known to the eee RK tiff the propriety of seatins himself and,remaining, seate on ‘a’ wun A an. 8. ~~ Coe the seat wrovided for passengers in said BOO Be etc e plaintiff more or less severe, as to have suggested to the plain- £ failed to be in such place so provided, and because of his failure to retain his seat at the plave provided for him, he was thrown down by the jerks and jars of the train, then it would be the duty of the Jury to answer the second issue "Yes". of this kind for freight trains, ficient room for the vlaintiff. to sit on the at, or either of then, as passcngers usually sat tnereon, and the plaintiff sat on the end of the scat , with his right foot on tie edge of the coal box, and his left foot as he described, and while so sittine - he was thrown therefrom and injured, ke would not be entitled to recover ‘and: thé Jury should answer the second issue Yes. | } From arc thy pase Mens be, on Th» caes, the’ plow. l4y eo ot ol a HHS N“— a i amma tt~—<% Peg a | Glen, Ufa Mie. face Lyk SN bee Cor 9ey -Vaz-teow ho ky : I bs) Q . PEGE: / [04 - : oraislii, hn) 0 tonne ie. ave_eled y ‘tae dhe Catatlpitoy ) ) a4 . roger Ly Samer eeert- at ete LipnSG — SF atin Bn A 7 axeae “ ~~ : A842 CH? w- _ po! DORE sppeceier> Hy 4 Uy t 4 | f i) } I | i q { 4 f | ql \ } { | Iw? ony pk go ~) i] i ) GA Jb, Pl iicaag pies. | | antde Stl addle, fest Siw f- | GAD. Sead 70 Br Zh Juba Shen, Wiig Peta pacshise —— M, V, Marable ¢ . vs, ¢ Special prayers for instructions Southern Railway Company by the plaintiff. i 1. The Jury are instructed that the law is well settled that a commen carrier cannot stipulate by contract against liability for negligence, and this rule applies to every species of nezli- gence or tort. 2. If the jury find from the evidence that the plaintiff, by reason of a stipulation of the defendant that it should not be eH | liable to the plaintiff in oase of injury to him while w passenger, \ pbtained # reduced rate of fare, still, if the Jury find that the \ plaintiff was injured while upen the defendant's train aa a passen- ger, and that auch injury was the g@age@e result of negligence on the part of the defendant, then the jury are inatructed that said stipulation against liability for negligence in the contract of carriage, if the Jury find there wae mich stimulation, would not avail the defendant as a bar to the plaintiff's action, _ 3. ‘The jury are instructed that while the mere fuot that one has been injured while in a publio conveyance does not raise N ® presumption of negligence in the carrier, it is otherwise when ~ the injury results from something ever which the carrier has een- | ‘*Pel, Aecordingly when there is a collision, or # derailment, snd in similar cases, there is a presumption of negligence, and this presunption extends to the ococourange, regardless of the party in- Jured. 4, If the jury find ny * greater weight of the evidence that the plaintiff wae 8 ‘passenger upon defendant's train as allesdd; that he was sitting in said car on a seat provided for perce ao that the unin sus suming ot a seco 0 SME $0 10 tenas; wiles an hour; that while he was tima sitting, without any notioe or warning to the plaintiff, and without any fault er neg- ligenoe on his part, he was thrown by the sudden and violent stopp- age in, suddenly and viele itly from his pesitien on said Sent, tree ae Saw feet forward, tearing hia shee heel eff ant \ \ al nN ‘ 4 s » ae ee ae mth - ite. ‘ ‘ ; SMT ass ots fo, a 0nAr hurling the plaintiff against a stove stationed in said car with such suddenness and violence as to injure him as alleged, the jury are. instructed that thia would be negligence presumed on the part of the defendant, and would entitle the plaintiff to recover, unless the defendant has shown by a greater weight of the evidence that - guoh sudden and violent stoppage of the train was caused by something not a&kem within the control of the defendant, and you should anawor the first issue Yes. 5, The jury are instructed that if you find the facta to be as set forth in the last instruction, and that the plaintiff was in- | Jured by the sudden and violent stoppage of said train and was hurled against said atoye and injured as therein set forth, then the deo trine of res ipsa loquitur applies in this case and the burden of proof shifts to the defendant to satisfy the Jury by 9 greater weight of the evidence that such sudden and violent stoppage of the train if it did so stop, and the injury to the plaintiff thereby, if he was 80 injured, was caused by something beyond xk ita control, and if the defendant has failed to do this, then it would be the duty of the jury to answer the first issue Yes, 6... The jury are instructed that there is no evidence of | contributory negligence on the part of the Olaintiff”, and you should anawer the second isaue No, 7. If the jury find that the plaintiff was injured by the Bear HEsSe® Of She Caceres, sos fies, ish intuny resylsed 2 dammee, then the plaintiff is entitled to recover as damages, one compenda~ tion for all injuries sustained, past and prospective, in conse— quence of the defendant's wrongful or negligent acts, Thoxe are unierstood to embrance indemity for actual nurafing and medical expenses and loss of time, or loss from inability to perform ordinary labor, or capacity to ear money. Plaintiff ia to haye a roasonabas satisfaction (if he is entitled to recover) for loss of both bodily ami mental powers, and for actual suffering both of bedy and mind, #§ - whieh are the immediate and necessary consequences of the in: snaver to the third tame should be quan mum as you may find Plaintiff entitled to under the Court's instructions, you Siem find he is entitled to res Se M. V. Marable # , ") vs. # Issues, Southern Railway Company # (1) Was the plaintiff injured by the negligence of the defendant as alleged in the complaint? answort— 0. (2) Was the plaintiff guilty of SO SUL ORY negligence? Answert— (3) What damage is the plaintiff entitled to recover? fnswert— 1.re or _— te -- . x North Carolina { In the Superior Court Iredell County { July Term, 1906. Me. Ve Maravle vs JUDBMENT. So ern Railway Co»~ ~~ + \ Ae 4 a 2 Pt le Z 7 . : ° voy. This cause ‘fonins on to be heard at this Tern of the Court 7 . . i } before His Honor, G. §.,Furgeson, Judge and a Jury, and deine heard WIA ~~ LS \ YX upon the whole record and the issue "Was the plaintiff injured by the n -gligence of the defendant as alleged in the Complaint"? end the Jury having for answer s2zid "No" to said issue: It is , therefore, comsidersd by the Court that the plain- tiff recover nothing because Of nis said writ ', but that the de- fendant recover nis- cost to be taxed by the’ Cierk of the Superior Court, and go hence withowt day. ‘ qv Judge Presiding. Civil Subpoena.—Printed and for sale by Brady, The Printer, Statesville, N. C. 2M—5—,04. STATE OF NORTH CAROLINA, To THE SHERIFF OF = OLLE. County--GREETING: Dou are Dereby Commanded to Summon ey personally to appear before the Judge of Superior Court, at the next Court to be held for our said county at 7A \ Defendent...... And this you shall in no wise.omit, under the penalty prescribed by law. Witness —F- , Clerk Superior Court for... cecceccceeecceeccceeeeeeeeneeeeenee County. Civil Subpoena.—Printed and for sale by Brady, The Printer, Statesville, N. C. ’ 2M—5—,04. STATE OF NORTH CAROLINA, To THE SHERIFF OF Vint County--GREETING: Wou are DerebyCommandep to Summon Ziwt_e var personally to appear before the Judge of Superior Court, at the next Court to be held for our said county at the Court House So Oana coccecenecneeeeeenenesneeeeneneesenenseseeeeesosseeneecsnenessenenseneseeneeneaes Ss ngeacatienoaes in a certain cpntroversy before said Court aerenniee and then and there to be tried, wherein... | Tn, UV om. Plaintiff... and Bg a ‘Defendent And. this you shall in no wise omit, under the penalty prescribed by law. , Clerk of our said Court, at office in Monday in Or Court force eee ee County. Civil Subpoena.—Printed and for sale by Brady, The Printer, Statesville, N. C. 2M—5—,04. STATE OF H CAROLINA, TO THE SHERIFF OF. County--GREETING: e Judge of ee Court, at the next Court to be held for our said county at Lad nes SMC } all i 2 wise omit, under the penalty prescri } ; Ne ley ee , Clerk of our said Court, at office in Clerk Superior Court for. ‘ WW ae A : 4 4 Dr 2 Leh) At C&T ¢ (ee Term, ol NORTH CAROLINA. vo € SUPREME COURT. o Dre, came on to be argued upon the transcript of the record from the Superior Gourt of Gounty:—upon.consideration whereof, this Court is of opinion that there See LPO. error in the record and proceedings of said Superior Gourt. It is PL and: adjud, d by the Gourt here, that the opinion of the Court, as delivered by the Honorable And it is considered and adjudged further, that the... (0-Wit, (HO SUI Of .....::2:6-000ss00s5, and execution issue therefor. A True Copy: Glerk of the Supreme Gourt. SUPREME COURT OF NORTH CAROLINA; August term, 19086. +#362, Iredell. M. V. Marable, appellant v. Southern Railway Co, This is an action brought SreSver damages for injuries alleged to have been caused by the negligence of the deféndant, The plaintiff was a passen- ger on one of defendant's local freight trains in September, 1904. The train | Was composed of about 35. cars and a caboose, ifi which the plaintiff was sit- ting on a seat: with: his feet on a box having tools in it, a stove being near and in front of him, ‘There were. cushioned seats in the car. He took pas- sage at Charlotte for Landis ‘and presented to the ticket agent an "Annual Clergyman's Reduced Permit" which contained the following contract: "In con- sideration of the reduced rate sranted™by this permit, the owner assumes all . risk of damage and accident to person or property while using the same." The plaintiff testified that his name was on the permit but that he had refused to sign it, though he used it for the purpose of securing a reduced rate, and was allowed the reduced rate by the agent. The plaintiff objected to the in- - troduction of the permit, the objection was overruled and he excepted. The. conductor took up his ticket after he got on the train, When between Concord . and Glass, the train came to a sudden and violent stop, throwing the plaintiff from his seat on the end of the bench against the stove and bruised and oth- erwise injured his right forearm, His hervous system was affected and his | health failed. The engineer, not now in the service of the company, testi- fied that there were 85 cars in the train which were fully equipped with au- | tomatic air brakes and al] necessary appliances. Everything was in first class condition, When the train was approaching Glass, he got an order to stopthere and did stop the train in the usual manner. The train was on an up grade all the way to Glass from Concord and there could have been no un- usual jar or jolt of the train when it stopped. There was a jar and always | is when such a train is stopped. It comes from the slack in the cars. There is more jolting in a freight than in a passenger train, The train was run- ning from 6 to 8 miles and an hour. There was evidence tending to show that the plaintiff occupied a dangerous position and one likely to cause his fall from the seat if the train should make the usual stop and that-a person not used to riding on a freight train of 35 cars is very apt to get a good bump x if he is not careful and that Host any one ee be jolted some, There was ~~ a = ' ee much other evidence substantially to the same effect as that already stated. The court at the request of the plaintiff, charged the jury that a carrier cannot stipulate for exemption from liability for negligence and the permit held by the plaintiff and used by him to get a reduced rate of fare would not exonerate the defendant, if the plaintiff was injured by its negligence, and -thatit is no bar to his recovery. ~ That where one is injured in a public con- veyance and the injury resulted from something over which the carrier had eep control, the law paises a ‘presumption: of negligence which extends to the oc- gurrence, regardless of the party who is injured. If the jury found. that the plaintiff was injured as‘ described by hin, the ‘law raised a presumption of negligence and he is entitled to recover, unless the defendant has shown by the greater weight of the evidence that the: sudden and violent stoppage of the train was caused by sonething not within ite control, and unless this has been shown by the defendant, they will anewer the first issue (as to defend- ant's negligence) 'Yes', That in such a case and under such facts and cir- cumstances tiie doctrine of res ipsa loquitur applies and casts the burden. on defendant to show that the injury was unavoidable and if it has failed so to do, they will answer the first issue 'yes'. These were all the instructions requested by the plaintiff on the first issue and all were given, The court, at defendant's request, charged the jury that the common law made the defend- ant an insurer of the plaintiff's safety and that the permit had the effect , of relieving the defendant of the said common law liability, and that defend- ant would only be liable for negligence, if there was any. That negligence must be shown to have caused the injury which must have proceeded from some fault of the defendant. That the plaintiff assumed the ordinary risks inci- dent to the running of a freight train, such as the one in question was, if it was managed in a prudent and careful manner, and the jerking of the train which is alleged to have caused the injury was unavoidable and such as ordi- narily occurs in the operation of a freight train, and if the train was so managed and the jolting or jarring which caused the injury was unavoidable and only incident to the running of such trains, even when prudently and care fully managed, they should answer the first issue ‘No’ fThe court in its general charge, which was elaborate, explained to the jury the contention of the parties and the bearing of the testimony upon the issues in the case,and then substantially instructed the jury that while the burden of the issue is . upon the plaintiff and he mst show negligence, yet if there was such a sud- den and violent stopping of the train that plaintiff was thrown from his 4 seat, it would require explanation from the defendant and the inquiry natur- ally arises, why was the train so suddenly stopped? The answer should nat- urally come from the defendant, as the plaintiff was in the caboose and the defendant's servants were in charge of the train, The jury answered the fird issue, as to defendant's negligence, ‘No’, Judgment was entered for the de- fendant and the plaintiff appealed, G. B. Nicholson; Furches & Coble and J. B. Connelly for L. pjaiatit? yt oHanty gant appellee, WALKER, J., after stating the case:- We can find no fault with the instruct- ions given by the court to the jury, when they are considered together and construed in the light of the facts which the evidence tended to establish. The judge gave the plaintiff the full benefit of the circumstances attamding the injury as evidence of negligence and charged the jury that the defendant mist show that the jolting of the train was unavoidable in order to acquit itself of negligence, ours of passengers is not an inaurer, as is a car rier of goods, He is therefore not absolutely liable for the safety of the passenger as the carrier of goods is for the safety of the goods intrusted to his care, His liability is based on negligence, and not on a warranty of the passenger's freedom from all ‘the ‘accidents and ‘vidissitudes the journey. The doctrine that the carrier of goods is an insurer was adopted for reasons peculiar to the undertaking and because of the a control of the car- rier eb over the property. Tt was ‘first announeed, we believe, by Lord Holt in the famous case of Coggs v. Bernard, 2 Ld, Raymond 909 (1 Smith's L. C, 869) in these words: "The law charges the person thus intrusted, to carry goods as against all events but the act of God and the enemies of the King", and this dictum of his was formally pocene as a principle of the common law by solemn decision in Forward v, Pittard, 1 Term Rep, 29; Christie ¥; Griggs, 2 Camp. 79. In the latter case Lord Mansfield drew the distinction between the two classes of carriers when he tersiey tersely said, "There is a difference between a contract to carry goods and a contract to carry eee. gers, For the goods the carrier is answerable at all events, But he does > not warrant the safety of passengers” The distinction was recognized in * nie > , * t Aabous v. Heaven, 2 Esp. 582; Crofts v. Waterhouse, 8 Bing. 319; and Harris v. Costar, 1 Car, & P, 686 and finally settled in the leading case of Readhead v Railway, L. R., 4 Q. B. 379; Brdigers v. Railway,, L. R, 7H. L, 281, In this country the measure of liability of the two-finds of carriers has been practically settled according to the English rule. Ingalls v. Bills, 9 Mete1 Stokes v. Saltonstall, 9.Peters, 181; Railroad v, Ball, 53.N. J, Law 288; Pak mer v, Canal Co., 420 N. Y, 170; Gilbert v. Railway, 160 Mass, 403; Moier v. Railroad, 64 Pa, St, 225, This court has recognized the distinctiom and erected different standards of duty for the two classes in Hollingsworth v . Skelding (at this term); McNeill v. RailPoad,-185 N. C. 682; (S. C. 182 N.C, 670) and Everett v. Railroad, 138 N. C. 68, & carrier of goods can only re- f lieve himself of his common law liability as an insurer for loss or damage not resulting from his negligence by a contract reasonable in its terms and founded upon a valuable consideration, Everett v. Railroad, supra; but this principle does not apply to the carrier of passengers because he is under no such liability. 1 Fetter on Carriers, Sec, 2; 6 Cyc of Law, p. 590 - 594, In this view of the law, the evidence as to the permit was harmless, The exceptions of the defendant are so placed in the charge that we ars at a loss to know the particular proposition of law, as laid down by the cour Which was considered objectionable. If it was supposed that the defendant was bound to exercise the highest degree of care and that the court failed to raise the degree to the required moxin,” it is sufficient to say that there- was no request for such a special instruction and the Omission, if there was one, is not therefore available to the defendant, io different forms of expression used in stating the rule of liability all recognize substantially the same test, the difference in statement being for the purpose of applying the rule to different states of facts. Thus it has been said that the car- rier is required to excrcise that high degree of care for the safety of the passenger which a prudent person would use in view of the mature and risks of the business, or, in general, the highest degree of care, prudence and fore- sight to prevent injury to the passenger, which the situation and circum- stances demand in view of the character and mode of conveyance, and which a prudent man engaged in thes business, as usually conducted, would employ and Which is reasonably practicable and consistent with the efficient conduct of the particular business and the free use of 211 proper means and appliances, | Diy“ ‘es \ The standard of duty should be according to the consequences that may ensue from carelessness. 6 Cyc. 591 - 593; Railroad v. Horst, 98 U. S. 291. What- ever the rule may be, the has no right to complain¥ of its misap- plication in this case, as the court gave all of the instructions he asked for and besides the presiding judge finally brought the liability of the de- fendant to the true test, which is negligence of the failure to exercise proper care, under the circumstances, and he told the jury that the defendant would be liable unless the injury was unavoidable, In taking passage on a freight train the plaintiff assumed the usual risks incident to traveling on such traigs, when managed by prudent and competent men in a careful manner, While life and limb are as valuable and the right to safety may, perhaps, be the same in the caboose as in the palame car, yet it must be remembered that in the operation of freight trains, the primary object is the transportation of freight, and the means and appliances used are, and are known by the passa ~ger to be, adapted to that special business and therefore one who travels on Such trains must expect that jolts and jars will occur and he necessarily takes the risk of those which are not caused by the negligence of the carrier’S Servants, but which are usual and consequent on such mode of transportation, 1 Fetter on Carriers Sec, 17; Railroad v, Horst, 98 U. S. 291. It seems to us that the charge of the court covered the entire case and, when properly construed, submitted it fairly and oprreet ly to the jury under all the cir- cumstances and when this is done the parties have no just ground of complaint, or for asking anything more, especially if they have failed to request more definite instructions, The charge appears tobe in accordance with the law as stated by this court: in Wallace v. Railroad, 98 N, ©, 404: S. C, 101 N. C, 404; Smith v. Railroad, 99 N.C, 24.1 and His Honor perhaps was guided by thom cases, | The defendant moved in this court to dismiss the appeal under Rule 20 for failure to comply with the requirements of Rule 19, A similar motion was made upon at this term, based Substantially the same grounds, in Davis v, Wall, and we enforced the rules to the extent of dismissing the appeal in that case, We again specially direct the attention of the profession to those rules and to that decision, as being very proper for their careful consideration when pre- paring cases on appeal. We have discussed this case at rine plesinvolved are of vital importance and_as the practical seoust oat eppame, we prefer to decige it on the merits, inst pat aa » instead of dismiss the app x a. 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