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HomeMy WebLinkAboutRailroad Records 1918-1928 Railroad Records 1918 SUMMON FOR RELIEF.—Judge—Printed and for sale by Brady Printing Company, Statesville, N. C. County—In the Superior Court. MM cks Mee. tf. - A Ah hAcg A. _--- He ee ee ee ee ee ee eee ee ee ee ee eee ee oe ee ee ee ae ae ee eee ee ee Mee ee Be ee we eee ee wee ee ee ee eee ewe we we ee we ewww ww az yy , SUMMONS FOR RELIEF. for said County,.within the first three days of said Term, and let said Defendant-__.-take notice if-<</__they fail 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 ret A Given under my hand and seal of said Court, this_ L Rt GA Fd os cena 191s... eA cee <...County. — o f of oa pen O h 3% iB e é i. 2s 3 a . ie ' a » 1 ! ‘ o aE § dd ras 5 3 Ag a | ~ a c oe: 5 7s = ae : i ° = 1 18 < ‘ : oS 0 iia ; ' 1 2 1 ; ! ; | t e ig 1 i t og 2 is ' i j : : . 0 i g - ! i 2 i Z z Ry I ' s 4 27 0 He i § 3 i , i é 7 i - 7 s s = a x c f e e ay g 4 4 ria ie Li \ : : | & i o n - — ; aon ' : : c : Yt ys ¢ | c e | os ! ! ! 1 2 - i lit i e n e : os ai ; | 3 4 S a n e =| I aE ! | a ! 1 n u e = I na : ia 1 ; L ! i 7a 4 Ee ! i ! | og L L G t 5 | - LH « , a8 ! I 3 2 | 1 ! a : ag ! - ye innit aan a id : qa ; go _— A L ay a ons ahh ~ _ a ae ing 2 es < a ads P E 4 a 4 | ". o o a pa Ee 0 i ay ee D a ag 3 ie i ! aa | ; a read 4 7 ik i ' at + | 3 gj a e | eg iz » SGT" = HE | 2 g e r “ ag a2 _ a | fa! 2 3 5 : < s e 2 § z 2 “ A y a _ — r m i ry di Sir, v w / ve e ! e o | 2 = --f; = Ss “ is gi aT a : “\ ce) fs a 0 5 st " qa q n 0 9 7 i a _ _ _ J O } : ‘ ip ~} y0 q i o d n g . — _ 9 ae m3 3 SN y o ts D 5 x k O W W N — 2 y e S " yaw | =" North Carolina, | Superior Court, Iredell County. | 4s of May Term 19196 Lucky Moore and Ralph Page, partners, wader the mame of Moore & Page -VS~ COMPLAINT Southern Railway Coe, Se ee J. He. Sands & Coe The plaintiffscomplaining of the defendant, allege: 1: That the plaintiffs are residents of Iredell County; are partners in business under the firm name of Moore & Page, and as each are engaged in business as lumber dealers, and were 80 engaged at the time hereinafter set forthe f 2: That the Southern Railway Company is a corporation duly organised under the law of Virginia, and operates its railroad oe through the State of North Carolina, and was at the time hereinafter mentioned, and is now engaged as a common carrier for persons and freight over its warious lines, and as such common carrier operates a line of railway from Salisbury, N. C. to Asheville, HN. C., and beyond, by and through the villiage of Elmvrood, HN. Cs, where it maintains a depet and side track and lumber siding for its customerse . S$: That plaintiffs are informed and believe J. H. Sands & Gos is a corporation duly organised under the laws of Virginia, and was at the time hereimfter stated, engaged by the Southern Rail- way Co. in repairing its track and road-bed and in performing this service used ami operated a train of cars with an engine which was operated over the Southern Railway Company's tracks in repairing its es 3s tracks and road-bed and was so engaged at the time he reina fter mentioneds 4: That the Southern Railway Co. maintains at Elmwood, N. Ce, @ lumber yard adjacent to its side-track for the use and convience of its customers in unloading and stacking lumber for shipment over its line of railway. fi: That a short time before the date hereinafter alleged, the plaintiffs unloaded and stacked on said yard adjacent to said sidetrack, for chipment over its linesof railway to his customers 25,366 ft. or more of lumber of the value of $582,87, and was waiting for a car which plaintiffs had applied for with which to ship said lumber, and while said lumber was on the yard aforesaid, the wame was destroyed by fire, under the circumstances , hereinafter allegede P 6: That on the 9th day of Sept. 1918, about 3 OBclock in the morning, defendant, J. H. Sands & Cos had a chain of box or shanty cars standing on the Southern Railway Company's sidétrack at Elmwood, N. C., which were used by the crew of said Sands & Coe while in the employ of the Southern Railway Co., in cooking, Sleeping and other purposes; that on the said night and about the. hour of three in the morning, the defandants carelessly and negliently permitted said shanty or box cars to be destroyed by fire, and negliently permitted the fire from said shanty or box cars to communicate to the lumber of the plaintiffs,by which the same was totally destroyed to plaintiffe' damage in the sum of $888.87. ¥: That after said fire was buraing the box or shanty ears aforesaid, the defendants carelessly ami negliently permitted said fire to commnicate to plaintiffs' lumber and failed, as plaintiffs are informed and believe, to make any effort whatever, to prevent said fire from communicating to said lumber, or to prevent the destruction of same after it was thus ignited. 8: That as plaintiffs are informed and believe and so allege, on the night of the fire the defendants carelessly and negliently permitted the cars to become ignited from the lights or fires in said shanty cars by leaving the same unattended, unprotected, and unguarded ,by reason of which said cars were destroyed by fire and said fire commnicated to the lumber of plaintiffs on the yara <a aforesaid, by which it was totally destroyed to plaintiffs’ damage in the sum of $583.87. Wherefore, plaintiffs demand judgment in the sum of $583.87 and the legal rate of interest thereon, from Sept. 9, 1918, and costs of action ani for such other and further relief as plaintiffs may be entitled to. Attorneys for Piaintiffs North Carolina, Iredell County. make th oath that the foregoing complaint is true of his own knowledge, except as to those mtters and things stated on information and belief, and as to those he believes it to be true. Subscribed ani sworn to before me, this the day of » 1920. Glerk Supericr Court, NORTH CAROLINA, IN THE SUPERIOR COURT. TREDBLL. COUNTY. AS OF MAY TERM, 1919. Lucky Moore and Ralph Page, Partners, under the name of Moore and Page, VSe Southern Railway Company, Je He Sands & Co. Fe ee ee? eee eg Cg Me? The defendant, J. H. Sgnds & Company, answering plaintiffs' complaint says: Ie That it denies that it has maginowledge or information sufficient to form a belief in regard to the allegations in ar- ticle one of the camplaint. II. In answer to the allegations in article two of the com- plaint, the defendant. admits upon information and belief that the Southern Railway Company is a corporation duly organized and exist- ing under and by virtue of the laws of the state of Virginia, but it denies upon information and belief that on the date alleged that the Southern Railway Company was engaged as a common carrier for Passengers and freight and upon information and belief it further denies that it operated at the time alleged in the complaint a line of railroad from Salisbury, N. 0. to asheville, N. C., and other points, and that it maintained a depot ani side track and lumber siding for its customers as alleged in the complaint, tite In answer to the allegations in article three of the complaint, the defendant admits that it is an incorporated Company, duly organized under the laws of the- State of Virginia, but it denies that at times alleged in plaintiffs: complaint, it was engaged with the Southern Railway Company in repairing its track and that in performing its work it used and operated a train of cars with an engine, which was operated over the Southern Rail- way Company's tracks in repairing its roadbed and tracks and that it was so engaged at the time alleged in plaintiffs' complaint. IV. The defendant denies upon information and belief that the Southern Railway Company maintained at Elmwood, N. G., a lumber yard adjacent to its side track for the use and convenience, - Of its customers in unloading and staeking lumber for shipment over its line of Railway. ~ Ve The defendant has no knowledge or information sufficient to form a belief as to the truth of the allegation contained in the fifbh paragraph of the complaint and therefore denies the same. VIe The defendant denies each and every allegation in article six of the wmmplaint. VII. The defendant denies each and every allegation in article seven of the complaint. bs VIII. The defendant denies each and every allegation in article eight of the complaint. WHEREFORE, having answered plaintiffs' complaint as fully asit is advised it is ita duty to do, prays that it go without day; that plaintiff take nothing bythis action, that said action be dismissed and that defendant recover its comt to be taxed by the Clerk. NORTH CAROLINA, IREDELL COUNTY. ¢ (! Vf hMtw , Being first duly sworn says, that he is Awhuk Ntukiyca -of the defendant, J. He Sands & Company; that he has heard pee foregoing answer read and knows the contents thereof; that it is true of his own knowlede, except as to matters stated on information and belief and as to these he believes it to be true. Sworn to and subscribed before me, This 4; @ay of | AMY » 1920. MY COMMISSION EXPIRES MA ¥ 13, 1922 North Garolina, Superior Court, Iredell County, | As of May term, 1919. Lock Moore and Rabph Page, Partners under the name of Moore and Page. wVg~= Answer of Southern Rai lway Companye eo Southern Railway Company, and J. H. Sands. : Southern Hailway Company, defendant, without waiving its motion heretofore, further answers the complaint and says: FIRST. The first pfagraph of the complaint is not denied. Second. It is true that Southern Railway Company is a corporation duly and originally organized, created and existi under and by virtue of the Laws of the State of Virginia, bu it denies that on the date alleged that it was engaged as a commom carrier of gmassengers and freight, or it operated on said daté a line of railroad from Salisbury, N. C., to Asheville, N. C., and other points. It is also denied that at that time, it maintained a depot, side track and lumber siding for its customers. THIRD. Soufhern Railway Company has not @ufficient lmowledge or information to form a belief as to the truth of the alle- gations contained in the third paragraph of the complaint, and therefore denies the same. FOURTH. e The allegations contained in the fourth paragraph of tbe complaint are not true and are denied. FiFrtH. Sputhern Railway Company has not sufficient Imowledge or information to form a belief as to the truth of the alle-~ gations contained in the sixth paragraph of the compa@aint, and therefore denies the same. SIXTH. That Southern Railway Company has not sufficient sare ert ee or information sufficient to form a belief as to the truth of the allegations contained in the sixth paragraph of the complaint, and therefore denies the same. ~ SEVENTH. . Whe allegations contained in the seventh paragraph of hhe complaint are not true and are denied. EIGHTH. The allegations contained in the eighth paragraph of the complaint are not true and are denied, and for a further answer and defense to the plaintiff's cause of action, the defendant says: That &t the time of the alleged destruction by fire of certain lumber in Elmwood, N. C., of the County of Iredell, Southern Railway Company by and under an order of the President of the United States has been taken over by the Government for purposes of its own, in transportation of troops, supplies and other things necessary to a successful War Policy, for which it was engaged and maintained under the control of the Government, together with its management, until the 2lst day of March, 1920, and Southern Railway Company alleges that it is not liable for. any damages or default upon the part of the Government otf its agents, while under its control. And it further alleges that it is not a proper party to this suit, that the same should be dismiased as to it, and having fully answered, it asks that it recover its cost in its behalf expended and go hence without day. Coungel for Defendant. B. A. Cowan being duly sworn says that on the date alleged in the complaint, he was the agent of the Director General of Railroads at Statesville, N. C., and since the 2lst of March has been, and is now agent of the Southerh Railway Company, at Statesville, N. C., that the foregoing arswer is true of his own knowledge except as to matters and things stated therein upon information and belief and as Bo those he believes it to be true. Sworn to and subscribed before me this the day of <. 1920. Horth Carolina guperior Sourt ry Ireaiell County Way Tes 2948 A. EER ap VITX Jti core, = ae ae. eee ee = Peat . ee eee fas G, tft OT aa o€ Souther Railway Company by and through its eomsel, Caldweal & Caldwell enter a special appearance in this cause, and move the court to dismiss the same for the following reasons: That under an Act of Congress, Southern Railway Company, together with other Railroads in The United States, on the lst. day of January 1918, were taken for Governmental purposes, out of the eontrol and management of their then respective offieials, together with all appliances and wmployees operating said Rail- ways, and placed under the absolute control of a “Director General" of Railroads$ and that since said time, and at the timp of the alleged wrong the Director General of Railroads has been in the full absolute, and continuous eontrol of Southern Railway Company in all of its bwanches, operating, and controling the same free discharged from all participation therein by Southern Railway Co. That Southern Railway Company at no time since January lst. 1918 has had any agent at Statesville or elsewhere; that on said date B. A. Comwmm, upon whose service of Summons was made was not the agent Southern Railway Company, but was tye agent of the Director General of Railroads, That no act or thing was done by Southern Railway Company since said date, and it ean not be responsible ror tne acts of the Government. whe property Of toe saiu Company having heen in- voluntarily taken for it by a paramount power, and in the execlu- give control and operation of the Bovernnent at the time of the £et complained of. Wherefore it prayse’ the Gourt to dismiss the action as to it. Tounsel for Southern Railway Company. adi - -- © . A ~* i » x . ‘ ¢ ‘ ¢ . ‘ z € ‘ . . \ t t / af l € ‘ . ¢ e¢ v e e . c ; . ® \ ' r ° e P : - = _—_—-—<— --* ~- ~* ~-e - " Bill of Costs—Civil—Printed and for sale by Brady Printing Co., Statesville, N. C. | No. SC a OS eee nee OF aes oe IN THE SUPERIOR COURT.|., chee ie Coun (| Fiqap FOr (| py \|Prachment, Orderin. 2 2 ee ee Injunction Orde-, including Bond and Justification. . . . Order of Arrest. . ....... Original Summons, or other origina! process, including all PRIOR GUONUN Sas eg pe ae eee se. oft Sate $ Subpoena, each name .... . eee sy ered et cence ee dete / Against fy a he x Aj Qn ‘ Notifying Solicitor of Removal of Guardian . . .. . Continuance... ... ...... ee Caveat to a will, entering and docketing. .......-. issuing Commission, a en en Notice, for each name over one in same paper . impanelings)Ury.e-u. m-mec Justification of Sureties, except as otherwise provided. Judgment final in term time.. Judgment final before Clerk... . 2... 2... -50 Judgment in favor of Widow's Year's Support... . . . .50 Docketing same......... ee eee . oo Docketing ¢x parte Proceedengs ..........-. : .50 “ Judgement. s-s on. (le) Oe ne ge Summons... . Rilingsbapers:-- ire Postage, actual. ........ Bc enesure crcl stl sisters Transcript of Judgement. ..... . ene ene Execution of Sherriff's Return re oe Appeal to Supreme Court, including Certificate and Seal . . Transcript to Supreme Court. . . . copy sheets, each. . County Tax, when jury impaneled. . . Referee's Allowance. . ........ Pura eicnren ounce Constable. . . . 2... 2 2 ee ee ee ee ee ee et Magistrate. ...... ec cere ores Plaintiff's Witnesses... .... 2.2... ee Se) @ (ce ie: 6) fe 6 6) «6 6 «6 <« » « «€ © © & &@ © © 6 8 @€ « & 6 &@ 6 & 6 € 7 = © © © © # «© eer seeeews8 ¢ e+ © © © © © © © © C8. ¢ 6 6 3 @ 6. © 6 6 6 BS St ES e © © © © @"s os & © © © & 8 <g> |---- See [6] “uuay susp (‘epod ayy Aq pexiy sy) | “TIAD-S1S0) 40 TH | LAAIOT TIAII ‘ON 3-15- 13-1M. AGAINST . SUMMONS FOR RELIEF. “4 County—GREETING: the defendant ...above named, if-.................... be found within your County, to be and appear before the Judge of our Superior Court, at:a Court to be held for the County of at the Court House in which will be deposited in the office ofthe Clerk of the Superior Court for said County, within the first three days of said Term, and let said Defendant.......... take notice if............... .they 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 seal of said Court, this... /¥ cxuaeiesens ng A ee 1914... STATE OF NORTH CAROLINA, County. We acknowledge ourselves bound unto the Defendant........in this OR however, if the Plaintiff cost as the Defendant... may recover of the Plaintiff being sworn says he is worth the sum of two hundred dollars over and above his debts, liabilities and property exempt from executions. a ge Plaintiff's Attorney. Pret« AGAINST Received LE Returnable to» a 7. North Carolina In The Superior Court Iredell County. As of Jany Term 1918 R.S.Sherrill COMPLAINT. vs Southern Railway Company © Plaintiff above named complaining of the defend— ant for cause of action alleges and says: First. That the defendant is ,and was at all times hereinafter mentioned, a corporation duly ordganized under the laws of the State of Virginia,and engaged in operating a line of railroad from Salisbury N.C. throught. the county of Iredell to Asheville N.C. known as the W.N.C. Railroad touether with oe locomotives and other appurten- ances thereto belonging. Second. That on the day of December 1917., plaintiff was traveling with a wagon and team of horses, the property of plaintiff ,of the value of $500.00,along the public highway leading from Statesville N.C. to Salisbury N.C. ,which high- way crossed the track of the defendant about two or three miles East of Statesville N.C. That as plaintiff team reached said crossing the defendant caused one of its locomotive and train of cars ,running as an extra and off schedule,to pass rapidly over the track of the defendant ,and negligently and carelessly omitted while approaching said crossing to give any signal ,by bell or whistle ,or otherwise ,and by reason off said negligence and carelessness ,and without any fault on the part of the plaintiff ,the locomotive and train struck said horses and team killing the horses and destroying the wagon and harness . Third. That by reason of the carelessness and negligence of the defendant aforesaid and as aforesaid plaintiff has been a greatly damaged ,to wit : In the sum of $500.00 the reasonable value of said horses and damage to his wagon and harness. Wherefore plaintiff demands judgment against the defendant for the sum of Five Hundred Dollars »with interest ther4on from the day of December 1917., untill paid and for such other and further 2 as may be fan Zz. proper. 4 b.xon 4 Cee hs TMs ; North Carolina §f In the Superior Court Iredell County f January Term, I9I8. R. S. Sherrill VS. Southern Railway Company. Phe defendant : answers the Complaint and says: ata ; The defendant is a corporation duly and originally created, organized and existing, under ahd by virtue of the laws of the: State of Virginia, was and is engaged in the trans- portation of passengers and freight for hire upon its various lines of railway. =e The allegations of the second paragraph of the Com- plaint are not true and are denied. . ; -3— The allegations of the third paragraph of the Com~ plaint are not true and are denied. And for a further answer the defendant says: . That the plaintiff carelessly and negligently left his team of horses to go along the oublic road without any driver or person on the wagon, he having gotten off and gone some distance back up the public road; that the team, without driver or any person with it, went Over and along the public road, and , while a train was passing, walked into the train in an effort to follow another team of the plaintiff which preceeded it, and which was driven in safety across the track of the defendant. That whatever injury was done to said team of horses was because of the carelessness and neg= ligence of the plaintiff in leaving his team of horses to go along the public road without a driver, he having left said team and gone back up the road; that plaintiff knew trains were frequently run over and along said railway, he living abutting said railway, and said carelessness and negligence on the part ox a Plaintiff are pleaded in bar of his right of recovery n is case. : Wherefore defendant prays that the plaintiff? recover nothing, that defendant so hence without day and recover costs © to be taxed by the Clerk of the Court. « Zaki. Qn Co onc til Counsel for Defendant. om B. A. Cowan, being duly sworn, says that he is the local agent of the defendant at Statesville; that the fore- going Answer is true of his own lmowledge, except as to matters and things stated therein upon information and belief, and as to those he believes it to be true. Sworn to and subscribed to before me this the day of April, I9I8;} Civil Subpoena.—Printed and for sale by Brady, The Printer, $tatesville, N. C. 5-15-’07-2M. STATE OF NORTH CAROLINA, a Monday after the... first... Monday in..........: March the same being the 26th. day of oe 1919 next, then and there to testify and the truth to say = behalf of Defendant.......... . And this you shall in no wise omit, under the penalty prescribed by law. J, A. Hartness , Clerk of our said Court, at office A R. 8. Sherrill engine . Plaintiff Against _Southern Railway Company Sess eteseey eestor teeas eee Defendant ~ SUBPOENA--civil % UX virrbarth DP is $399 7 ‘North Carolina In The Superior Court Iredell County May-Term 1919 R.S Sherrill JUDGMENT. vs Southern Railway Company This cause coming on te be herad and being heard be-— fore His Honor W.F.Harding , Judge Prepiding, and it appearing to the court that the parties have compromised all matters in controversy in this action ,the defendant agreeing to pay the plaintiff the sum of One Hundred and Eighty Seven and 50/100 ($187.59) in full settlement and satisfaction of all damage sustained by plaintiff for the causes set out in the complaint; &: alg is tikrefore considered and adjudged that the af: *. \f. plaintiff recover of the defendant the sum of One Hundred and Eighty Seven and 60/100 dollars ,with interest thereon from and after date hereof ,together with the costs ef this action to be taxed by the clerk of the court. Tite AP fore gore or plaintiff. Attorney for defendant. / For value received I hereby transfergand assign the above judg- ment to Z.V.Long and H.P.Grier. This May 30 1939. aP , ‘ ™ Bill of Costs—Civil—Printed and for sale by Brady pe ane LF I 9 Ke 1517 : eats EY Ofte DR ee ee oe Fe “fo riginal Summons, or other original aor —_— eet } names therein . > > 7 se No. Docket a IN THE SUPERIOR COURT. 2 | Sue County. oe Attachment, Order in... . 26-2 ee ee ee ees — fc. Lacee Injunction Order, including Bond and Justification. . . - earee . ee Order of Arrest. . 2. 2 2-1 ee eee te — Subpoena, each name .. .-- - ee eee te tts ae Against Notifying Solicitor of Removal of Guardian... . . - - af — al Continuance... ..- 2. se eee ee ee et * ee . Caveat to a will, entering and docketing. - z 7s eo meee Issuing Commission. ..-. +--+ +--+ +sse4 &.. =o Affidavit, including Jurat and Certificate... -.--+-:- ae Seale urcus eines cect ns este re-set > se oso } Motion, Entry and Record of +. 7. Ont Kare : — Notice... 2-2 2 ee ee eee eee eet te tees ore ' Cn af Notice, for each name over one in same paper. .-- - - ; -|---- — , Impaneling Jury eee ieice rs cesses eae aoe I Justification of Sureties, except as otherwise provided. Soe os . : 3 Judgment final in termtime.. . . - -- + + ++ | a . P ne Judgment final before aia rennet : ee | 7 S A Judgment in favor of Widow's Year's Support. . - - - - : -H}----|---- Docketing same. . - © - + 2+ ee ets a 3 5 “ Docketjng ex parte Proceedengs .---++-+-- °°: , _ ie Judgement... --- 2 - + eee tte : | “ Summons ....---+- s+ +e ee tc? _ Indexing Judgment... . - - - eee ee ee tts —_ Filing Papers. 2 2 2 2 ee ee te ts __ Postage, actual. © 2 2 ee ee ee ee es __. Transcript of Judgement. .. - -- +--+ sess _ . Execution of Sherriff's Return .....-.---++-++:- : | oo Appeal to Supreme Court, including Certificate and Seal . . — - ” “ 4 Transcript to Supreme Court. . . . copy sheets, each. . oe . County Tax, when jury impaneled. .... - - yo 008 ; A Referee’s Allowance. ...-+.+-+- +5. 7 Sheriff . Cte TE K _ dria hard, Nee wrAg e SA ot Ch N on Megiatsate .C/ La AT Fa. — Plaintiff's Witnesses... - - ee et ts seer ee ed ‘| eee oe ae eo oe ce we el er eee 8 ew Ss ig “ “s £¢ at A eo mee OG te te . ee wit dusme as SOD a ee ee ys 6% i 6 Wo . eo ow se oe ie 6: 6 coupes on Defendant’s Witnesses. 2. 2 6 6 6 ee ee et tt es Gee ss scl we ee we kee we ee 8 ee le ee “<<< ie ©) kk MH Ew ee Wee ees no se SCC ee we ee 8 le es ew 8 6 6 eo 6 ee ed Bg ee fae a [6 “uuay . ? (‘apo eq3 Aq paxiy sy) “ “TIAD-S1S00 40 TH LINIOd TAIN ON om Railroad Records 1919 SUMMONS FOR RELIEF.—Judge—Printed and for sale by Brady Printing Company, Statesville, N. C. County—In the Superior Cove the same being aE he of wie which will be deposited in the office of the’ Clerk of the Superior Co for said County, within the first three days of said Term, and let said Defendant----- take notice tte fail 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 re Given under my hand and seal of said Court, this../ >= day of “Y™ eT cwcraeweks 1 1 F- In the Superior Court. yids stnleabacnbaetefineleh tome nial naira OC CUMS STATE OF NORTH CAROLINA BOND. | ) ee oe ee a ee ee ee ee ee ee ee p/ Against We acknowledge ourselves bound unto-_.._._______-_--_-_------------------------------------ the Defendant___-_ in this action, in the sum of..____________-_----_-_--_--L-------Dollars, to be void, however, if the Plaintiff__-..._.-.-.---------------_--------.-shall pay the Defendant_-..-. all such cost as the Defendant___.._ may recover of the Plaintiff______ in this action. Witness our hands’and seals, this.__.._-.day of_.-./.....--------------------A. D., 191-122 ee ee eee aaa eed OME) eee ee ea eee a CREE) ou +--+ ---------------- (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--..--..day of Woon -191-- a. “AoW10}7V 8 UB] BF Fa I a Agger ans ae 73 ; yy 4 ) PY oe 8 mp ZO My = ' sQuodng oy; jo eat ” o1qeuinyoxy 1 at oe North Carolina, | In the Superior Court Iredell County. | Ase of May Term 1919. W. Le Davis «@VS- COMPLAINT Southern Railway Co., Jd. He Sands & Co. The plaintiff complaining of the defendants, alleges ' 1: That the plaintiff.is a resident of Iredell County and was at the time hereinafter alleged. 2: That the Southern Railway Company is a corporation duly organised under the laws of Virginia, and operates its rail- roaaé through the State of North Oerolina, and was at the time hereinafter mentioned, and is now, engaged as a common carrier for passengers and freight over its various lines, and as such common carrier operates a line of railroad from Salisbury, HN. Ce, to Asheville, N. C., and beyond, by and through the villiage of Elmwood, N. C., where it maintains a depot and side-track for the shipment of lumber and other freight for ite customers. 3: That J. He Sands & Co. is also, the plaintiff is informed and believes, an incorporated company duly organised under the laws of Virginia, and was at the time hereinafter alleged énguged ty the Southern Railway in repairing its tract and road-bed, and in the discharge of this service used and oper- ated a train of cars with an engine which was operated over the Southern Railway Company's tracks in repairing its road-bed and tracks and wes 80 éngaged et the time hereinafter stated. 4: That the Southern Railway Company maintains at Elmwood, N. 0. a lumber yard adjacent to its siding tract for the use and convenience of ite aqustomers for loading and stacking lumber xfer shipment over ite line of railway. 5: Theat a short time prior to the date hereinafter alleged, the plaintiff unloaded and stacked on said yard adjacent to said side tract for shipment over its line of railway to its customers, 23,,700 ft. of pine lumber of the value of $592.50 and was waiting for a freight car with which to ship said lumber, which plaintiff had applied for, and while said lumber was on the yard aforesaid, and before said car was furnished, plaintiff's lumber was destroyed by fire under the oirounstances alleged. 6: That on the 9th day of Sept. 1918, about 3 o'clock in the morning, defendant, J. H. Sands & Co., had a chain of box or shanty care standing on the Southern Railway Company's tract at Elmwood, HN. C., and by aie lumber yard, which were used. by the orew of said Sands & Co. while in the employ of the Southern Railway Company,in cooking, sleeping and other purposes; that on the said night and about 3 o'clock in the morning, the defendants carelessly ani negliently permitted said shanty or box ears to be destroyed by fire, and negliently permitted the fire from the shantys or box cars to communicate to plaintiff's lumber awaiting shipment, and des- troyed the same to plaintiff's damage in the sum of $692.50. 7: That after the said fire was burning the box cars or shantys on the night aforesaid, as plaintiff is informed and believes, the defendants carelessly and negliently permitted said fire to communicate to the plaintiff's lumber without making any effort whatever to prevent the plaintiff's property from being @estroyed by the fire aforesaid. 8: That as the plaintiff is informed and believes, and so alleges, on the night of the fire the defendant, Sands & Co. carelessly and negliently permitted ite cars standing on said track by plaintiff's lumber, to become ignited from its light or fire in gaid shanty cars by leaving the same unattenied, unprotected, and unguarded and by reason of which said cars were destroyed by fire, and said fire communicated to plaintiff's lumber on said yard by which it was totally destroyed to the plaintiff's damge as aforesaid. Wherefore, the plaintirr demands judgment in the sum of $592,566 with 1gse2 interest thereon, and the cost of this action, and for such other and further relief as plaintiff may be entitled to. Attorneys for Plaintiff. North Carolina, Iredell County. We Le Davis maketh oath that the foregoing com- plaint is true of his 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. ~ Subscribed and sworn to before me, this the day of «21920. L Olsrk Superior Courts ae cc NORTH CAROLINA, IN THE SUPERIOR COURT. IREDELL COUNTY. AS OF MAY TERM, 1919. W. Le Davis, ) ) Va. ANSWER OF J. H. SANDS & CO. ) Southern Railway Co. and J. He Sands & Co. The defendant, J. H. Sands & Company, answering plaintiff's complaint says: Ie That the allegations in article one of the complaint are admitted to be true. Ne, . IIe In answer to the allegations in article two of the séompaint, the defendant admits upon information and belief that the Southern Rail- way Company is a corporation duly organized and existing under and by virtue of the laws of the state of Virginia, but it denies upon inform- ation and. belief that on the date alleged that the Southern Railway Company was engaged as a common carrier for passengers and freight and upon information and belief it further denies that it operated at the time alleged in the complaint a line of railroad from Salisbury, N. C. to asheville, N. C., amd other points, ami that it maintained a depot and side track and lumber siding for its customers as alleged in the complaint. III. In answer to the allegations in article three of the conm- plaint, the defendant admits that it is an incorporated Company, duly organized under the laws of the State of Virginia, but it denies that at times alleged in plaintiff's complaint, it was engaged with the Southern Railway Company in repairing its track and that ia performing its work it uged and operated a train of cars with an engine, which was operated over the Southern Railway Company's tracks in repairing its roadbed and tracks and that it was so engaged at the times alleged in plaintiff's complaint. IV. The defendant denies upon information and belief that the Southern Railway Company maintained at Elmwood, N. cC., a lumber yard adjacent to its side track for the use and convenience of its customers in unloading and stacking lumber for shipment over its line of Railway. Ve The defendant has no knowledge or information sufficient to form a belief as to the truth of the allegations contained in the fifth paragraph of the complaint and therefore denies the same. Vie The defendant denies each and every allegation in article six of the complaint. VII. The defendant denies each and every allegation in article seven of the complaint. VIII. The defendant denies each and every allegation in article eight of the complaint. WHEREFORE, having answered plaintiff's complaint as fully as it is advised it is its duty to do, prays that it go without day; the plaintiff take nothing by this astion, that said action be dis- missed and that defendant recover its cost to be taxed by the Clerk. ad NORTH CAROLINA, IREDELL OOUNTY. ha , Being first duly sworn says, that he is Mietnst [Mcestey -—0t the defendant, J. H. Sands & Company; that he has heard the foregoing ansgwer' read and nows the wmntents thereof;that it is true of his own knowledge, except as to matters stated on information and belief and as to these he believes it to be true. /) £m jf / J) i J. Sworn to and subscribed before me, this DULY day of My. MY CGMMISSION EXPIRES MAY 13, 1922 North Carolina, Superior Court, Iredell County. As of May Term, 1919. W. L. Davis, -Vs- Answer of Southern Railway Southern Railway Company, and Company. J. H. Sands, & Cow » A Southern Railway Company, defendant, without waiving 4ts motion heretofore, further answers the complaint amd says: FIRST. ALR CCEA, . The first paragraph of the complaint is not denied. SECOND. : It is true that Southern Railway Company is a corpor- ation duly and originally organized, created and existing under and by virtue of the Laws of the State of Virginia, but it denies that on the date alleged that it was engaged as 4 common carrier of passengers and freight, or it operated on _ gaid date a line of railread from Salisbury, N. C., t0 Asheville, N. C., and other points. It is also denied that at that time, 4+ maintained a depot, side track and lumber siding for its customerse THIRD. Southern Kailway Compamy has not sufficient knowledge or information to form a belief as to the truth of the alle~ gations contained in the third paragraph of the complaint, and therefore denies the same. FOURTH. The allegations contained in the fourth paragraph of the complaint are not true and are denied. FIFTH. Southérn Railway Company has not sufficient knowledge or information to forma belief as to the truth of the allee~ gations contained in the fifth paragraph of the complaint, and therefore denies the same. SIXTH. That Southern Railway Company has not sufficient knowledge or information sufficient to form a belief as to the truth of the allegations contained in the sixth paragraph of the complaint, and therefore denies the same€e °° SEVEBTH. The allegations contained in the seventh paragraph of the complaint are not true and are denied. EIGHTH. The allegations contained in the eighth paragraph of the complaint are not true ad are denied, and for a further answer and defense to plaintiff's cause of action, the defendant says: That at the time of the alleged destruction by fire of certain lumber in Elmwood, N. C., of the County of Iredell, Southern Raiiway Company by and under an order of the President of the United States has been taken over by the Government for purposes of its own, in transportation of FTOOpS, supplies and other things necessary to @ successful War Policy, for which it was engaged and maintained under the control of the Government, together with its management, until the 2lst day of March, 1920, and Southern Railway Company alleges that it is not liable for any damages or default upon the part of the Government or sts agents, while under its control. And it further alleges that it is not a proper party to this suit, that the same should be dismissed as to it, ana having fully answered, it asks that it recover its costs in its behalf expended and go hence without day. Counsel for Defendant. B. A. Cowan being duly sworn says that on the date alleged in the complaint, he was the agent of the Director General of Railroads at Statesville, N. C., and since the 21st day of March, has been and is now agent of the Southern Raile- way Company, at Statesville, N. C., that the foregoing mswer is true of his own knowledge, except as to mtters and tyings stated therein upon information and belief and as to those he believes it to be true. Sworn to and subscribed before me this the day of 1920. North Carolina Superior Oourt Iredell County May Term 1919 Southerh Railway Company by anf through its eounsel, Caldéweal & Caldwell enter a speeial appearance in this cause, and move the sourt to dismiss the same for the following reasons: That under en Act of Congress, Southern Railway Company, together with other ‘Rativoats in The United States, on the lst. day of January 1916, were taken for Governmental purposes, out of the eontrol and ecnairomaat of their then respective officials, together with all appliances and employees Operating said Rail- wexa, and pleases uuder the absolute gontrol of a "Director General” Of Railroads; and that since said time, and at the time of the alleged wrong the Director Ceneral of Railroads has been in the fall absolute, and continuous control of Southern ‘Railway Company. im all of its tganches, operating, and controling the same free discharged from all participation therein by Southern Railway Co. Peat Bouthara Railway Company at no time since Jantary ist. 1918 has had any agent at Statesville or elsewhere; that on said adate B. A. Commm, upon whose service of Summons was made wap not the agent Southern Railway Company, but was the agent of the Direetor GOeneral of Railroads, That no act or thing was done by Southern Railway Company eines said date, and it can not be responsible yor the acte of the Government. The property or the said Company having been in~ — Wolungarily taken for it by a paramount pover, and in the exelu- © ive eontrol and operation of the Bovernnent at the time of the act complained (Of. Wherefore it prays: the Gourt to dismiss the action as to it. ‘Railway Company. —_ n> Me Oe YES i > er —o ae we Shes er Lo Sel ne le ett te nas me Pt PEN oO ere - es a cs “a~ aN ay Pans fs ee FON 2 AD aA) nett Taste ape “ar . e , ; v's bs = oa ~* ™ ae Bill of Costs—Civil—Printed and for sale by Brady Printing Co., Statesville, N. C. nal Summons, or other original process, including all WERE CHUNG 66 ns ow ek RW ee 8 en 8 Origi | No. . Docket IN THE SUPERIOR COURT. Every copy of same. ..... 5 5 ont eel ea ees Bond, including Justification. ....--.- 1. +++ es Apfegijfrom Justices. . 2... ee eee County. |] O:der for enlarging time of pleading. .....--:-- 2 os Attachment, Order in . 2. 2-1 7 ee ee ee es Injunction Order, including Bond and Justification. . . Order of Arrest. . 1... 25 2 2 - ees se ee we Subpoena, each name .....-.-- +--+ ee eee Against Notifying Solicitor of Removal of Guardian . Continuance. ....-. 2... 2 ee ee et et Caveat to a will, entering and docketing. . .. . . Issuing Commission. ..-.---. +--+. eee ers ‘Affidavit, including Jurat and Certificate... .---- A Ge peo ee be eo ee ee o foo ooo “*" Judgment Against a ees “y nF Notice, for each name over one in same paper. ....- - mes Impaneling Jury ..-.--. +--+ ee ee > Justification of Sureties, except as otherwise provided. Judgment final in term time... . . 2... +: a Judgment final before Clerk... . ~ Judgment in favor of Widow's Year's Support. . . . Docketing same... .. . Soo eo ean gezooe Docketing ¢x parte Proceedengs ..-.--+-+--+:-> ss Judgement... ..- +--+ ees ees: “ Summons... . Indexing Judgment... . - - 6 - ee ee ee et es Filing Papers... 2-2 2 ee ee ett ee ee es Postage, actual. . 2... - - ee et ee ee te es Transcript of Judgement. ..... . ne ee Execution of Sherriff's Retum . 2. 2... - +--+ +s: Appeal to Supreme Court, including Certificate and Seal .. Transcript to Supreme Court. . . . copy sheets, each. . County Tax, when jury impaneled. . . . . Referee’s Allowance... 1... +--+ e+ 0 ee ee te eee Constable. 2 ose ee ee ee ota es . Magistrate. .-..-.. tooo epee ol ois | Plaintiff's Witnesses... 2-2 ee ee ees IE, AG 0 BH lg we ee thee, 6 8 oe 3% -—-wy [6 “uuay jsuipspy (‘apor ey) Aq pexiy sy) “TIAD-SISO) 40 THE LINXIOT TIAID ON Summons For Relief—ClerK—Printed and for sale » by | Brady Printing Company, Statesville, N. C. a 4 SUMMONS FOR RELIEF. State of North Carolina, To the Sheriff of Pe tee County—GREETING: YOU ARE HEREBY COMMANDED to summon the defendant----above named, it tk en be found within your County, to appear at the office of the Clerk of the Superior Court for the County ot tbe heen ae , on the..../---day ot. NLCt~ boy a 1917. 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...“ ee days from date of this eens and tet. <& Seceage take notice that if__—A.__.____ fail to answer to the said complaint at ene time, the plaintiff. _°-will apply for the relief dainemied in -the complaint. Hereof:'fail not, ‘and, of dis eobegy bet return. we Given under my hand and seal of said wi eS of Cre 1917._. \ ate . \ — oN + \ AS {* 2 + ¢ 4 x \ ‘ a . 4 ) PW Gee ag opens ‘em Z days into th De 7 SUMMONS FOR RELIEF , Returnable within... /O ae AN \ North Carolina, ) Superior Court, ) Iredell County.) Nov. 21st, 1919) W. J. Morrison and wife, M. B. Morrison ) -vV8- Complaint. ) Southern Railway Company. The plaintiffs complaining of the defendant, allege: First: That the defendant is a corporation chartered under the laws of the State of Virginia, and operating a railroad in North Carolina. Second: That at the time hereinafter men- tioned the defendant was operating a railroad in and through Iredell County, North Carolina, and over and across a public highway of Iredell County, known as the State Central Highway, which crossing of defendant's railroad over said highway is near Statesville, N. C. and within one-fourth of a mile of Boston Bridge. Third: That on or about the 29th day of July, 1919, the plaintif?, M. B. Morrison, while riding in a buggy, drawn by a horse, along said highway, toward said crossing, and as she approached said crossing the defend- ant caused one of its locomotives drawing a train of cars to approach said crossing, and pass rapidly over the tract of said railway, and negligently and carelessly, and with gross negligence and carelessness, omitted while so approaching said crossing to give any signal by bell or whistle or otherwise by reason whereof the plaintiff, ‘ M. B. Morrison, who was riding alone, was unaware of the engine and train of cars, and by reason of said negligence, and without any negligence or fault on her part, said lo- comotive struck the horse, knocked it around, causing it to take flight and throwing the plaintiff, M. B. Morrison, violently paren the buggy, spraining her back, and ankle, : ole FA te sai ee injuring her side, and shocking her nerves, and otherwise injuring her. Fourth: That the defendant's locomotive and train of cars on approaching said cut from the East going West, passes through a deep dut, and on the bank next to said highway, had negligently permitted weeds and shrubbery. to grow thereon, thus obstructing the view of travelers On the highway, and especially the plaintiff, so that when she looked for a train on the occasion of the in- jury, she was unable to see said trafin or hear it as it approached said crossing. 7 Fifth: That by reason of the negligence of the defendant as alleged aforesaid causing the injury com- atetnes of, the plaintiff, M. B. Morrison, has suffered . great physical and mental pain to her damage One Thousand ($1,000.00) Dollars. WHEREFORE, the plaintiff, M. B. Morrison, : demands judgment against said defendant for the sum of One Thousand ($1,000.00) Dollars and the cost of the ile for Sieintiz?: action. wv NORTH CAROLINA IN THE SUPERIOR COURT IREDELL COUNTY W. J. MORRISON and wife M. B. MORRISON VS. AFFIDAVIT OF B. A. COWAN SCUTHRRN @AILWAY CO, ( ® B. A. COWAN, being duly sworn, saysi- aa Thathe is the person on whom the pretended service of swmons as to Southern Railway vo, was made in the above suit; that at the time of said pretended service of summons he was-not an officer or agent of any kind of the Southern Railwey Company, nor wasl® at said time recieving or collect- ing moneys within this State fof or on behalf of the Southern Railway Company, nor was he at said time in the employment of said corporation; that under Proclamation of the President and Acts of Congress the Southern Railway Company passed under Federal control on the 3lst day of December, 1917, and at all times since to this date the scaié Southern Railway Company has been in the hands of the United States Railroad Administration, ami affiant, during said time, has been in no way connected with the Southern Railwey Company either as its officer, agent or employee. Z V7 Sworn to and subscribed tefore me this _ ay of November, 1919. HE Jiccr~ No blic My conmission e res the __ day of 19 . titel p< 7 aud for Sag ae Notion hevatliirnk, Mitly tefl a » allows xy | : ° Aecewet, Bees 7 1-0 Hantnres th North Carolina, ) Superior Court. ) Iredell County. | December 2nd. 1919. We de Morrison and wife, Ii. Be Morrison ) ) ANSWER. ) ) Southern Railway Company. Southern Railway Company answers the complaint and FIRS®. It is a corporation duly and originally organized, created and existing under and by virtup of the laws of the State of Virginia, but it denies that on the day mentioned it was operating a railroad in North Carolina. SECOND. The allegations contained in the second paragraph pf the complaint are not true and are denied. THIRD. The allegations cohtained in the third paragraph of the complaint are not true and are denied, except that portion of said paragraph which alleges that M. B. Morrison on or about the 29th day of July, 1919, was riding in a buggy, drawn by ea horse along the highway toward a cros#ing. FOURTH. The allegations contained in the fourth paragraph of the complaint are not true and are éenied. FIFTH, The allegations of the fifth paragraph of the complaint are not Brue and are denied. ° And for a further answer and defense to plaintiff's cause of action the defendent says: FIRS?, That for some three hundred yards or more before reach= ing the crpssing, the highway on which the feme plaintiff was driving runs parallel with the railroad upon which a train was running from East to West; that for several hundred yards, before reaching the crossing, and at near the crossing the ‘train could be seen approaching the crossing, but feme plaint~ iff carelessly and negligently failed to look and listen or give any attention to the approach of said train=until within about twenty-five feet of the train when her horse ran into the tender of the train. SB6OND, That feme plaintiff was guilty of contributory negligence in failing to hear and see the approach of the train; in driving s0 near the crossing, that she was unable to control the horse, she was driving, and in permitting it to run tnto the tender of the train, and her negligence in failing to hear and see the train as she could have done, as it approached the crossing and her driving so near the track before she attempted to stop and the horse running into the tender were the causes which produced the alleged injury, and are pleaded in bar of her recovery and that of her husbands. 4nd having fully answered, prays that it recover its costs in its behalf expended and go hence without day. » 2 eet for bho Civil Subpoena.—Printed and forsale by Brady, The Printer, Statesville, N. C. 2M—s5—,04. STATE OF NORTH CAROLINA, To THE SHERIFF OF YOCCC County--GREETING: ~ — personally to appear vor e Judge of Superior Court, at the next Court to be held for our said county at ' 1p AYR, the Court House,i Defendent...... Witness , Clerk of our said Court, at office in Monday in Civil Subpoena.—Printed and for sale by Brady, The Printer, Statesville, N. C. 2M—5—,04. STATE OF NORTH CAROLINA, To THE SHERIFF OF ode County--GREETING: Wou are Dereby Commanded to Summon........... Dr....T..Hes....\nderson next, then and there to testify and the truth to say in behalf of in a certain controversy before said Court depending, and then and there to be tried, wherein 7. Je Morrison and wife Defendent Witness \ Statesville, N.C. reccascccnsnaconedsnocbersensccccsecsocvochseeeesceseosensossoeeseccocors ’ o nt Sr a SE cer I vibes <6 sd Civil Subpoena.—Printed and for sale by Brady, The Printer, Statesville, N. C. 2M—5—,04. STATE OF NORTH CAROLINA, To THE SHERIFF OF anecce County--GREETING: st 1920 onday after the ‘fiext, then and thété to testify and the truth to say in behalf of. AePenGemtig ccc ececeengeee in a certain controversy before said Court depending, and then and there to be tried, wierein Ae saes | Defendent...... And this you shall in no wise omit, under the penalty prescribed by law. , Clerk of our said Court, at office in Civil Subpoena.—Printed and for sale by Brady, The Printer, Statesville, N. C. 2M—5—,04. STATE OF NORTH CAROLINA, TO THE SHERIFF OF Count "Doge DBereby Commanded to a on “SG next, then Und there to testify and the truth to say in behalf of in a certain controvergy before said Court depending, and t Mh Court for _ STATE OF NORTH CAROLINA SUPERIOR COURT COUNTY OF IREDELL AUGUST TERM, 1920 fd 3. G MORRISON and wife uM. B. MORRISON, Ve SOUTHERN RAILWAY COMPANY le Was the femme plaintiff injured by the negligence of the defendant, as alleged in the complaint? Pet cfr . 2. Did the plaintiff, by her own negligence, contribute to the igjury. as alleged in the answer? ¢ ANSWER ; Gee Se What damages, if any, is the plaintiff entitled to recover? ANSWER: North Carolina, Superior Court, Scene OR, Iredell County. August Term, 1920. 2 ? ( | John Barten Payne, Director General, as Agent under the ) Act of 1920. This cause coming on to he heard at this term of the Court, before His Hono Lane, Judge, and a Jury, and being heard upon the evidence sub- mitted and the whole record, and the Jury having found that the plaintiff was not injured by the neg- ligence of the defendant as alleged, it is therefore considered and adjudged by the Court that the plaintiff . recover nothing, because of the said suit, that the defendant recover the cost of the action, to be paid ee : by the plaintiff and go hence without day. oe a = ee ie - See ent po Nie + ES Re - ce eal pee why “I A-maree -+ -— ws our 7 AS ANION mr SUMMONS FOR RELIEF.—Judge—Printed and for sale by Brady Printing Company, Statesville, N. C. FLAKES County—In the Superior Court. SUMMONS FOR RELIEF. the defendant_. above named, it 1__be found within your County, to be and appear before the Judge of ' at a Court to be held for the County of. rs d£22, at the House in RAIL on the. /t Monday after the.£.2>-.Monday of the same being the JZ ay of lito nao nein 191.Z.., and answer the complaint, a gapy of . which will be deposited in the office of theClerk of the Superior Court for said Connty, within the first ‘ three days of said Term, and let said Defendavt.....take notice if........they fail 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 re Given under my hapd and seal of said Court, this_ LL «day of > hes iad a ee 1's = ; — e 1 1 5 $3 38- ot : i . RN o { by, % 1 £3 8 oes a. f ' c 1 i = : = ‘ ; ' = | re ! 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A a oa a a a i : ! i -S ; FH 4 = eel et——SC wm ----------- ~ 1 i ; é i-@ @ 5 1 4 = gad ' i ' ' O° w a 4, t x= ts : 4 5 BS tied | egeted gy ie: et ! i 1 ‘ ° 40. = fio 4 | ge |F 22S — t : 9 po { 1 of as i § Ff hee A ee <3-------+--- , “ ' ; 4 ' S > © oe 1 co ° ; ‘ ' ; ; a >. 3 = ' - E » "3 i i ' } oO i AU UOC i 3 ' j ' i o FE PB 1g ~-----------4+---------- 2 5----- s ty ' i a ° Oo 1 © 2 a oe ew en op bm een oe j ~ “ ~ a] oO ry > on } \ 1 oO : { Arn ON j x ? Ca 1% - North Carolina,’ In the Superior Courts Iredell County,: A& Of May Terme1919. D.B.Beneon, phaintiff z vs. W.D.Hines,Director Géenereal g COMPLAIRT . of Railroads. 2 3 The plaintiff complaining of the defendant for cause of action alleges and says! 1. That the defendant W.D.Hines is the Director General of Raile roads,having been duly apvointed as such by the President of the © United States of America under the provisions of an Act of the Congpess of the said United States,authorizing the President to take over ae operate the Railroads of the United States,having succeeded W.G.McAdoo who was Director General of Railroads at the time of plaintiff's injury hereinafter complained of,said W.G.McAdoo having resirned said position and the said W.D.Hines having been appointed ase his successor at the time of the issuing of thé summons in this action, 2. That at all times hereinafter mentioned,the said W.D.Hines and his predecessor in office was,as Director General of Railroads and under the provisions of Congress by Act authorizing the Govern- ment to take over and operate the Railroade of the United States, Wux in possession of um controlling and operating a line of railroadé | running through the Town of Mooresville in Iredell County,State aforesaid,and being a part of the Southern Railway System and as such Director General of Railroads was maintaing depots,tracks and operating freight and passenger trains over tne tracks of the said railroad running through Mooresrilie, N.C. . e That on the 18th day of June,1918,plaintiff was traveling along one of the public streets of the Town of ¥Yooresville,N.C, in a motor truck,of the value of $691.74,which said street crosses the railway track aforesaid near the center and in a populous section of Mooresville N.C.and in the yard limits of the said Railway,situated in said Town. That as he approached said crossing defendant caused one of its ‘locat freight trains consisting of an engine arid cars to pass rapidly over, eaid treok; that plaintiff’ stbpped hie moter truck and waited until | / re ¢ * ene : — said train had passed over said crossing and then plaintiff started ‘across defendant's track on said public highway; wnen defendant carelessly and negligently ard without warning caused a number of box cars,whibh had been cut off of said train,to pass rapidly along said track and almost immediately following its said engine and cars in what is called a flying switch,without a flagman or watchman at said crossing on stationed on the front end of the said string of op the oe warn plaintiff of the approach of said loose box cars, a E Gu of, Caw. “~ ailing to give any notice whatever,of carelessly and negligently 4ts purpose and intention of kicking its cars or making a flying switah of its loose cars immediately following the passage of ites engine and care over said track,thereby carelessly and negligently striking plaintiff's truck and wrecking same and throwing plaintiff with great force and violence upon the track and dragging him a distance of 30 feet or more along said track and greatly injuring him. 4. That by reason of the negligence and carelesgness of the defendant,plaintiff was caused to suffer great pain in body and mind,hie ankle and shoulder bruised,strained and injured and his “pody 80 injured as to cause him to spit up blood,to remain in bed and indoors for six weeks away from his business,his motor truck was wrecked and destroyed,all to his great and lasting damage $2331.74 with interest thereon from said 18th day of June,1916,at the rate of six per cent per annum, Wherefore plaintiff demande judgment against the defendant for said $2331.74,with interest as aforesaid and for such other and further relief as may be just and proper and for the recovery of the cost of this action, 5 7 fo | / IN eae, . te (Vy D.B.Benson being duly sworn deposes and says that the foregoing ‘complaint of his om knowlédge is true,except as to those things therein stated on information and ief and to those he ieves it to be true, ie sae LES Sworn to and subscribed before me this the af aay of July,1919, * = V/ <n Uh MBE: or ee ee | { ‘ | } | ‘es North Carolina, ) “Superior Court, Iredell County, May Term 1919. D. B. Benson, Plaintiff = Vs- | Ws De Hines, Director General of railroads.. The defendant answers the complaint in ‘this cause, and says: First: That the allegations contained in the first pare praph of the complaint are not dentea. | a | Second: That the ey Lees 70ns contained in the second para- graph of the ‘complaint are not denied. : ane | Third: That the allegations pontetsa te. the thira para- “ - graph of the complaint are not true and are denied. : | | Fourths ®hat the allegations contained in- the fourth para~ + graph of the compinint mre- net ¢rue and. are denied. E —* . ana for - - further Answer and defense tocpaaantatete cause of Astin. . the. defendant says: . First: | That the slaintice sar arenes and negligently: drove = his truck upon the tf¥acks of the d fendant, when he saw, ‘or could. _ have seen, the cars approaching the crossing upon which he drove seaié truck; thereby contributing to whatever injury he received. | Second: That in ariving his s&id truck ‘carelessly and negi- ligently upon the tracks of the defendant at the time he saw, OF _-goula have seem, the cars approaching the crossing, the pleintift ,was guilty of Contributory ES end such contributory. Heg- - Ltgence: is. pleaded in bar of his recovery in. this Action. being duly sworn says ‘that the eee pains Angwer is. trus® of his own Imowledge, except ‘hiecutatters therein stated. apm - informstion and welicg and to those he believes it to be true. ne worn ta. and subsorib ed | Pe eee ee Se as ont sp vomeee me, this day of:September 1919, ,*: $e Civil Subpoena.—Printed and for sale by Brady, The Printer, Statesville; N:-G, = 2M—5—,04. | STATE OF NORTH CAROLINA, To THE SHERIFF OF County--GREETING: Wou are Hereby Commanded to Summon Ons Mug erk Superior Court fo SUBPOENA--Civil. For. Agagh Bot, VWs K ung. Aarier aeecg ile Moe pte A | | Civil Subpoena.—Printed and for sale by Brady, The Printer, Statesville, N. C. 5-15-’07-2M. STATE OF NORTH CAROLINA, Defendant And this you shall in no wise omit, under the penalty prescribed by law. WITNESS, , Clerk of our said Court, at office Boia peageetgssesssirerplen aie mieten Defendant SUBPOENA--Civil. SPECIAL INSTRUCTIONS ASKED BY THE DEFENDANT. Not given, except in the General Gharges & Railroad Company, and a traveler on a highway crossing are charged with a mutual duty of keeping a care- ful look-out for danger, and the degree of ilance is in pro- portion of the knewn danger; the greater the danger, the greater the care required of both. A traveler upon a highway on reaching a crossing and before attempting to g° upon the track must use his sense of sight and Bearing to the best of his ability, under the existing and surrounding circumstances; he must look and listen in beth directions for approaching trains, and this should be fone before he has taken a position exposing himself to peril, or before he has come within the zone of danger, Cooper, Vs. The Railroad, 140 N. C. 209, Coleman Vs. The Railroad, 153 N. C. 322, Wolfe Vs. The Railroad, 154, N.C. 509, Johnson Vs. The Railroad 163, N. C. the Jury shall find from the evidence that the defendant was running a train of cars from the siding and in direction @f the @pssing, and that it cut the train of cars, so that the engine and part of the cars ran over the crossing and a switch was thrown to divert or turmiéhae - balance of the cars anto a side track, making what is called and known as a flying switch- and if the Jury shall find that on the front end of the cars in the rear cut or section as it came towards the crossing, was a fla » or brakeman, and should further find that a flagman was on the ground at the crossing and hollowed at the plaintiff- and should further find that the last cut of cars coming to the crossing could be seen there-an thobstructed view. The Court charges the Jury that the defendant would not be guilty of negligence and the Jury should answer the first issue, NO, If the Jury shall find from the evidence that the cars were cut in two parts- one of which passed over the crossing, 16. ‘ and the rear section followed— and should/that there was mo obstructions and nothing to prevent the plaintiff at the crossing, if he had looked ,from seeing, the ond section as it approached the croséing, and should d that he did not look, but drove on the crossing, this failure of his to look, if he did fail, would make him guilty of Contributory ak aoe e, and the Jury should answer the _ Seatet. pssue, ~-. The failure of the Court to give the above instructions asked, constitute defendant's third exception. CHARGE OF THE COURT. D. Be Benson, the plaintiff, brings this action against the Director General of railroads, seeking to recover the sum of $2334.73, with interest on it from the 18th day of June, 1918, because he says, on that day, the 18th day of June, 1918, he was traveling along one of the public highways or streets in the Bown of Mooresville, this County, driving an automobile track; that the truck was worth $691.74, he said; and that as he approached the crossing place, where the railroad crosses the street, which he says was in a populous sectionAthe street he was traveling, that theycwere shifting cars across tere,—dAeross this crossing, and the manner inves, which they were doing was a careless and negligent mame, one in which they wer xercising reasonable care for the ~ safety of persons crossing al over this highway; in fact hi > he says, they were making a flying switch, a certain Sr Late of cars hitched to he engine, and when approaching a switch, which was near the side of the street; that they would go on at a high speed tmtil the cars were well started, then the engine would run along at a high speed, ahead of the cars, and along the switch, and, Raving left the cars behind, they coming more slowly, the switch would be thrown before they reached there; that the cars would go on another track from which the engine had one; and jn this, it,4@ contended that the persondengaged n thenmete) ths Sr tneke’ Piahay-tee-cngine—aicné, the man that stood at the switch throwing the switch back and forth, and the man, Atwell, who says he stood on the step or ladder on the side of the front end of one of the cars for the purpose of lifting the coupling arrangement that cut one car loose from anotherp the brakeman who was on the car, the rear car in this instance 7 “oe that these——mes, they allege there was no one at the crossing to | : L7 0 | warn persons approaching when these cars were shifting there, ang. that by reason ee tac that there was Be eer ceeee no pe there to warn them of,the gars that were ng along behing on their own monantune” Shee this; piaintitt aveve—hie— % Sues Hes truck near the tracks} saw the engine com: up with one car to it, believed a had a right to believe, they allege and con- tend, that was the only car coming, when they had cleared the crossing and gone up, and he started Bis truck, and as he bo Car/ got on the track, one of the tracks, and too late to escape because of its nearness to hin, that he saw the box cars coming, not in time to get the truck ne ene off the track, but just in time for him to jump from it, but not so quick but ‘that it struck him, and he was thrown there some 50 feet on the side of the track, and in doing this he says his car was wrecked and that the carswas worth $691 amd_something, and that he sustained injury to his leg and ankle, amd because of his pain and suffering, and his injuries are go -semeuns that he kas lost part of ghe strength and use of his ankle and that he is obliged to wear a brace, and for this and all of the damages he has sustained he asks $2334.73« The defendant denies that it was guilty of negligence in any respect there; says that it came across the crossing, the defendant's cars crossed there in the usual way, ,and whenever the engine approached there at this time, the signal,7 the bell and whistley were being given as to the approachs to this crossing, and this plaintiff,had full knowledge that the train Was pass along there theA cars were coming along there, and full oportunity to see Me approach of the cars; that he was so situated there, being there on level ground that he could see the approach of the car, an# that any person approaching the crossing could easily see the car, and that it was not necessary to put a perwgon there to warn anyone about somthing that was coming along there, when the person himself, if he has used reasonable care for his own safetym coulda easily see what was coming:j and it denies, therefore that it Zailed to give the signal;jringing the bell, and, also from the noise, that sll trains e in moving and operating, that he could have heard that: and #t contends that it was not negligent .in failing to give the warning of the approach of the train there end the cars; but, on the other hand, it says that the plaintiff was guilty _of Contributory Negligence; that is that his own carelessness contributed to his injury, and that any injury that he sustained there was produced by it, for that, if he had looked up and down the track that he would have seen, before he ever started his car after he had driven up to the track amd waited for the engine to pass by, if he had looked to the right as well as to 18. the left that he would have seen the approach of these other cars, because, it is alleged, there was nothing to obstruct the view, and in failing to do so that he failed to exercise that Gare Which s prudent man would exercise for his own égafety, and thereby that—ke contributed to his injry, and, they allege that whatever injury hie sustained were not damages for which in—thts—tistunce, tire the company, the Director General, . ern Rail C » would be liable. Now, then, these allegations and denials raise these issues, which are submitted to yOoOue The first issue is, "Was the plaintiff injpred by the negligence of the defendant, as alleged in tne complaint?” The gecomis: "Did the plaintiff, by his owm negligence, con= tribute to his injury, as alleged in the answer?" The third issue 4s: "What damages, if any, is the plaintiff entitled to recover?™ =| The burden of the first and third of thegg, issues is upon the plaintiff to satisfy you by the greater w. of the evidence of their truth. Greater weight of preponderance of the evidence does not mean a greater number of witnesses on one side or the other, you are not to count_the witnesses and say &pon which side there are a greater number, but it is the greafex, ht of the evidence itself, or the evidence put in a scale,to gee upon which side the scale goes down, which side has more convincing evidence, whether it come from his side or the other side, whehhber it shoulb be elicited on cross—exam nation or otherwise. Megligence is the doing of same act, which a reasohable7 pendent person W uld not do, or the failure to do some act which @ reasonably prudent person would do under the circumstances surr- ounding the situation. In order to determine the question as to whether there was negligence or not, you would have to know what duty was due to this mane . ng Xe Now, the public, as well as the railroad, has etee af public crossings; and the duty of the operatives of the railroad there was t@ use reasonable care in pessine treins, rinning trains over the highway there to —- from injuring any person, in giving signals and warning as to warn persons of the approach of a train, and failure to exercise such care 19. as that and perform such duties as that would constitute negligence. ‘But thermere act of negligence, if it was commit ia would not entitle a person to recover damages; t r the first issue in the -pisintiffis—faver, he is not entitled to recover, unless he oe further and shows by the greater weight of the evidence that such negligence was the proximate cause of his injury; because a person might be begligent, ever so negligent but if that negligence were not the proximate cause of the injury, if the injury was the proximate result of some other negligence, and, although negligence many have occurreé on the part of the defendant, such negligence in that event, would not be actionable negligence, and the company would not be responsible. Now, by proximate cause is meant the dominenhtvefficient cause, the cause without which the injury would not have occurred.'! Now, it constitutes negligence, umder the law, for a i. railroad Vompany to make flying switches across & crossing at @ populous crossing, where there is 9 great deal of traffic amd travel, without mving some method o®3’ means to warn persons who may be approaching the crossing, ateempting to cross, that loose cars are coming behind an engine which has passed, across, which ‘has been used in making flying switches. Now, such notice may be given @ various ways, bu 16 exercise—ot—z 5 and the failure to exercise reasonable care in the giving of such notice constitubes negli- Zencee And, if the Jury sgould find from the evidence in this case that -a twain and engine and some cars had passed across this paace, and that loose cars were coming on behind, which the engine had stgrted, and after giving them certain momentum had run away from in order that the switch might be thrown before th r t switch, and there was no _ no}fice or warningsy } Bokaen tae notice ot warning to Benson as he approached the crossi thet such cars were coming, that would - constitute negligence; but, it would not be actionable negligence, unless it was the proximate cause of the injury, if he sustained an injurye Now, it is contended thst no such notice was given and that you should not find that it exercised reasohbable care 20. in any manner, either by ringing the bell, blowing the whistlesp or by paving @ person there, and that no warning was given, either by the switchman qt the switch or by the men on the cars before the striking of the truck, is the - plaintiff's contentions in this action. Now, as to that, the defendant contends that he had notice there of the approaching cars; contends that at this place, it was a crossing where a person could see anything approaching on either side of the crossing, and that as "enson approached this pace that he did hear the engine approathing and stopped his car, but he didn't stop the engime,of his autonbbile trucks that he saw the engine pass aad go by and over the crossing; that these cars were coming in full view of him, and, necesgarily, it is conpended, making sOme noise, so much that if he had listened, would have heard that; that if he had looked he would have seen them, and that there was nothing to obstruct his view, and that at such a place as that any person, by merely using his faculties of sight and hearing could see an object approaching at some distance from the crossing; and that you should not fing that the railroad company was negligent, or the Director General, who was operating the railroad at the time, was negligent in failing te Bave other warn given or other means for warni persons approaching there, and that you should say that that was not the proximate cause of the injury, the failure to have any such person theremor means, or anything,to warn him of this, under those circumstances; that he could’ seen anyone, could and ai@, and, therefore, that the lack of tnédse things or the failure to fo these things were not the proximate cause of any injury he sustained there, and that there was no negligence. On the other hand they contend that you should fina that they were using reasonable care “RE that engine” passing along there whistled and rang fe11, or doing both, as you may find the facts to be, and were giving ample notice of the approach. Now, if 7 find, under all of the circumstances, that the defendant, employees there, were using reasonable care, such care as a reasonable prudent person would be expected to use under all the circumstances in giving warning of the approach of t e cars there, then you will answer the first issue, "No", that there was no negligence. The burden is on the Plaintiff to make the scale go 21. down on his side, and 4f you find it evenly balanceaé,, you will answer it "No". If you find that there was mo negligence? failure to exercise reasonable care for the safety of this plaintiff, Ww failur to give warning, such as a reasonably prudent man would ~ to give warning at a crossing of this kind, you will Answer the tssue," If you answer this first isswe "Yes" you will have to pass upon the other issues; if you answer it "No", you cam hand in the issues in that form and not answer the other issues at all. “he second issue is: "Did the plaintiff, by his ow negligence, contribute to his injur., a8 alleged in the answert” . Fhetburden of ta&t issue is upon the defendant to satisfy the Yury by the greater weight of vhhe evidence that there was Contributory Negligence on his part, which contributed to his injury, and that has to be Bhown by the greater weight, or preponderance of the evidence. The law is that when a person approcahes & crossing, ssing, that he must look for the approach of ordinarily, it is not sufficient that he look to see if a train is coming from one direction, but he must look in both directions, bith to the right and to the left for the train; and, if he is at a place where he can see the approach of a train, if he goes on & track and fails to 100k aay that constitutes negligence on his part, such as will bar recoverye Z. Now, if there is any obstruction, if the railroad company ha 8 allowed obstructions on the right of way or along the prack or anything passing there on its bight of way to bee seen there, Or allowed obstructiong& to be at there and remain t+ ere,,so that a person eould*see when he looked por the appro of . en 4g not negligenegon his partm e to observe t approach of 4 train in that =e hi n, by reaosn of the obstructions that would prevent him The defendant objected to the above part of charge in bracket and the same constitutes a€efendant's fourth exception. ( Also, that rule is modifies,if, under all the circumst- ances, the Jury should find that the act of the railroad company, or the defendant in this instance, there md been such acts fr conduct in the operation of the trains there as would lull 226 -@ man into a sense of sevurity, and caused him to believe _ and given him justification for believing that no other Cars were approaching the crossing, and lulling him into @ seyse of security that would warrant him in driving on a t&&k, but he is required t@& use that care Wwhich—he— » Which is reasonable care,for his safety, rertl he used sttch care, then there is no negligence on his par The defendant objected to the above part of the charge in bracket and the same constitutes fefendant's fifth exception. Ji but a persoh; as I say, is required to use reasonable care for his own safety, that is, such care as a reasonably prudent person would exercise for his owm safety under tie circumstances and surroundings, when approaching the crossing, using his facuke~ ties of sight and hearing, and if he sees a train approaching & crossing so near that it would appegar dangerous, that he could not reasonably get across before the approaching train, fhen he must stop and wait until the train passes, getsby, so that the train may be operated as its business ra aes ree without | undue interference vf persons crossing over and upon the trackk. “ow, the defendant contends that you should find that there was contributory negligence upon the part of this plaintiff, Its céntention is that everything there was open and that there were no cross ties there that would obstruct the Plaintiff's view from a line of box cars coming along that track; that . a man sitting in the seat of a truck, that he was high enough above the ground so that he coulda easily see the cars approac}- ing. Now, they contend trat the plaintiff admitted upon the stand that he didn t look, that he could have seenthese cars if he had looked, and so, if the Yury should find the facts to be that if he adokéd>ep there he would have see n these cars, then you would find that he failed to obsserge progr care for his own safety, if he did not look, because that is something that the law requires him to do, if he could see. Now, he gays t hat there was a pile of cross ties there, You can say how that is. The defendant says that not withstanding the pilé of cross ties beins there that according to his own statement he could have seen up the track, if he had looked. ( Now, tf-you-ftmt -- you must find whether he exercised reasonable care on his part#i,whether he kad reasonable grounds 256 for his failure to look up the track, whether the running of the engine across the track with one box car to it and along by the switch and away <from the crossingp whether wa he had justification in believing, in the exercise of reasona- ble care, that no other cars were Boma nEs eee him, in the exercise of reasonable care to 100k up he tracks also, because, unless you should find that, if he failed to look both Ways», Foe aegis be guilty of negligence, beeatse~then there—was Wur— on the part of tne railroad company done to lull him into a sense of security.) Te defendant objected to the above part of charge in bracket, and the same sonstitutes defendant's sixth exception. But if his injury was caused by 2 failure to exercise guch care as that on his pwntpart, and that that was the cause of his proximate injuzy, then that would constitube negligence on his part, and in that case, you should answer the second issue, "Yes". Nowp that is the contention of the defendant. It is contended that he ought to have seen it come there, the cars had approached in full view i@ he had looked he could — have segn it; that if he had htt beet he motor of his car; he could have heard i and t shut of his Bayes —— of his automobile, carelessly allow it to run, he knéw that he was in a place of danger; that it is a warning to anyone, it is contended, when they approach a railroad that there is a possib‘lity of trains coming along, and therefore, they should use a high degree of care in managing their own affairs, sutting off his mogor, etc., that they could hear. And, unde” all the cinaumeenceey the defendant contends, and or eff—en the trac says that if he had shutt his mo k, if he had donegthat that he could have heard them, and therefore, not gone across the crossing; and that if he had looked up and down the track, he coulda have seen them approaching, amd thé mere fact that the engine and car had peeseed there, was not guch an act as would lull him into such a sense of security as not to look for the approach of other cars, and that you should find the facts to be SO. The plaintiff sayg that he drove near this place amd stopped at the edge of the track; that the engine and the car went up; 2460 (That he hed no reason to suspect that any loose cars were coming dow the track; and for that reason he aidn't gee them coming, didn't hear them coming, and thatb he drove on the track) Te defendant objected to the above part of the charge in the bracket and the same constitutes defendant 't seventh exception. He contendsg that the switchman was standing 30 geet up the track anf gave the warning to him, and that there was & man on the box cars for the purpose of liftingthe coupling devices there, that he didn't see him in time to give him warning; that there was a brakeman on the car two carlengths away and pobre the train, and he failed to ado go in time, and tha the proximate causevof the injury, the failure to exerchse reasonable care in hav a person statiéned there so to do, and that that this | caused him to drive upon the track, and in doing so he contends that you should find that he acted as a reasohably prudent person '' would, after taking due rregard for his own safety. (Now, if you find that he acted as a reasonably prudent person would have done under all of the circumstancesp in driving his truck upoy the track, and his fahlure to look or observe the cars coming, to see them coming was justified, as 4 prudent man, meee prudent man, them you will agwwer the secon 4 issue, oOo". = Te defendant objected to the above part of the charge in the bracket and the same constitutes defendant's eighth exception. If you answer the first isse "Yes” amd the second issue, "No", you come to the third issue: "What damages, if any, is the plaintiff entitled to recover?" He would be entitled to recover, Gantlemen of the Jury, if anything, xe Wourt se such a sum as would compensate him for the Ee complained of. Now, he says that his car was wrecked and ruined and that was worth $691.74. If you should find that he lost that mush in the @estruction of his car, he would be entitled to recover that much for the car, or such sum pimt would compensate him for the care In addition to that, he says he was dragged along the track some 30 feet, that his leg was injuped and his ankle, causing him great pain and sufferings If you find that he is 256 entitled to danages for that, he is entitled to recover such sum as would compensate him fer such bodily suffering and such mental suffering as he endured by reason of these injuries. He says not only was he caused ere be being fragged along there, but that he still does suffer; that he has a weak ankle, has to waer a brace, and therefore, he can't get about as he could before, In dact, tnat it detained him from his work for a number of weeks, six weeks, I believe, and caused himza joss in his earnings capacity made in the wages in operating his motor truck, and he lost the use of the motor truck, and al those things he says, amounts to $2334.74. Now, XX you will say that would be. The defendant says that you shoyjg, not come to that issue, | but, if you do that you should give him, such -# amount, but that a moch smaller sum would compensate him. “ You are the judges of that, you are to find the facts from the evidence and take the ‘law from the court and apply 4t to the evidence here and ay; how you find ite Take the case, Bentlemen. Te Jury returning Verdict, answered all of the issues in favor of the pkaintiff. Motion by @efendant for a new trial for errors committed by the Court in it's charge, and others as set forth in the record. Motion denied, defendants excepted. Appeal by the defendants to Sppereme Comrt. Notice of appeal fixed at $50.00 an the defendants from the en on appeal, and 40 days thereafter allowe file exceptions, or serve counter Ccac@e The fohlowing is the judgment in the cause: D. B. Benson Vs- John Barten Payne, Director General of railroacs, 38 agent under section 206, transportation, October, 1920. This cause coming on to be heard and being heard 266 this term of the Court before His Honor Henry P. Lane, “Yudge presiding and a Jury, and His Honor having submitted, to the Jury the following issues, which issues the Yury answered as herein set put, to-wit: 1. Was the plaintiff injuréd by the negligence of the defendant as alleged in the complaint? Answer- Yes~e 2. Did the plaintiff by his own negligence contribute to his injury as alleged in the answer? Answer- Ka. 3% what damage, if any, is plaintiff entitled to recover? Answer- $1,500.00. It is therefore considered and adjudged that the plainte 4f#f recover of the defendant the sum of fifteen hundred | dollars, with interest from the 2nd day of August. 1920, at the rate of six per cent per anmmm till paid, together with the costs of this action to be taxed bg the Clerk of this Court. oe Henry P. Lane, Judge Lregiding. Te following are the d-fendant's exepptions and assignments of errore First: That t he Court erred in failing to nén suit the plaintiff at the conclusion of plaintiff's evidence. Second. That the Court erred in declining to non suit the plaintiff a’ the close of all of the evidence. a Third. - Por that the Court erred in refusing to give the special instructions asked for by the defendant. Fourth. “hat the Court erred in charging the Jury as gollows:' "Now if there is any obstructions , if the railroad Company has allowed obstructions of the right of way or along the track, or anything passing there onits right of way 276 to be seen there, or allowed obstrauations to be there, and remain so that a person could not see when he looked, the approach of trains then it is not negligence on his part" Fifth. That the Sourt erred in charging the Jury"also that | rule is modified, if under all of the circumstances the Jury should find that by the act of the “ailroad Com any or the defendant in this instance, there had been syeh acts, or conduct in the operation og the trains there as would lull a man into a sense of security and cause him to believe and given him justification for believing that no other cars were approaching the cressing, and lulling him ihto a sense of security that would warrant him in driving on the track, but he is required to use that care which he does in all matters, which is reasonable care for his safety and if he used such care then there is no negligence off his part Sixth ® That the Court erred in charging hhe Jury as follows: " Now if you finds you must fimd, whether he exercised reasonable care o n his part ,whether he had reasonable grounds for his failure to look up the track, whether he running of the engine across the track with one box car to it, and along by the switch and away from the crossing whos Be Dalat Sg nGbtpe DEN SA 8 DE PPB 28 ho that, if he failed to look both ways, he would be guilty Chet of neglie ence, beecamse then there was mothihg off the part of Wy, , railroad Company done to lull him into a sense of security. 7] re Seventh. ae : % That the Yourt erred in oharging the “Yury that he had no reason to suspect that any loose cars were coming 4 down the track and for that reason he didn't see them x coming, didn't hear them coming, and that he droveron the ¢ s e track. Eighth. That the Yourt erred in charging the Jury. "Now if you find that he act*as a reasohably prudent person,would have done under all of the circumstances ra o K %, Cone) 28-6 in driving his truck upon the track, and his failure to Look or observe the cars coming,to see them coming, was justified,as a prudent man, reasonably prudent man, then you would answer the second issue, "Not Ninth. For that the Your ng to grant a new trial for errors comm , as set out in the recorde Tenth. \ Le — Cabnre ONS For / that the Court: Snead in signing the judgment in , ., behalf of ‘the ‘plaintiff. a: a * A } , i a ~ a Zi « 3 4 North Varolina. ; | ¢ K+ Li. G 4 fe ; , + . ‘ i “ bore at e ¢ = » : . ; a , ey * Tredell Countys 4 “ * sgh ; a hes a. ~ In thfe above ¢ itled'cause, an appeal having been “* teken to the “epremg Court, by the defendant and the Court 4 having set, the bond,,at $50.00 and adjudged the same suff- icient, pow theyefore, John Barten Payne, Director General + as Principal and James E. Boyd as sprety acknowledged them- ‘ gelves indebted unto the piggntif? £9 tre sum of $50.00, well and truly to be paid. “he con jon of this bond i8 such, that if the defendants in said cause shall pay or cause to be paid, all such costs aavmay be adjudged inst them, by reason of this appeal, then this obligation @ to be null and void, otherwise to remain in full force and effect. t 4 J. E. Boyd being duly sworn says that he is worth double the amount of the above bond above alldebts, liabilities | and exemptions allowed by law. Sworn to and subscribed before me this the LG day of August, 1920. North Carolina In The Superior Court Iredell County. August Term 1920 D.B.Benson This cause coming on to be heard and being heard at this Term of the court before His Honor Henry P.Lane Judge presiding and a jury ,and His Honor having submitted,to thé gury the following issues,which issues the jury answered as herein set out, to wit: L. Was the plaintiff injured by the negligence of the defendant as alleged in the complaint} Answer Yess @ Did the plaintiff by his own negligence contribute to his anytiry “As altegsaryi the “answet? Answer.“ No, #6. What” damage, if any, is. plaintiff entitled to recover ? . Answer.$1.500, ANS QO. LO “Y in- It is therefore considered and adjudged that the acer ae cover of the defendant the sum of Fifteen Hundred Dollars, wit . terest ‘from the end day ‘of August 1920. at the rate of six per cent “sper aantm til]. paid, together with the costs of this action to be Tage prose ee taxed by the clerk tortHts :court, 15.4 SPECIAL IN sTRUCYIGNS ASKED BY THE TEF"NDANT. Hot given, except in the General Charce. A Railroad Company, and a traveter on a hienway crossing are @harged with a mutual daty of kespiag a= eare- ful lookeout for danger, and the desree of vigilance is in proportion of the Imown danger; the greater the danger, the greater the care required of both. | A traveler upon a highway on reaching a crogeinz and before attempting to so upon the track must use his sense of sight snd hesring to the best of his ability, under the ex=- isting and surrounding circumstances; he must look and listen in both directions for e»proaching trains, and this should be done before he has taken a position exposins himsolf to peril, or before he has come within the zone of dancer, Cooper, vs-The Railroad, 140 N. C., 209, Coleman Ve- The Railroad,. 153 N. Ce, 322, Wolfe, Ve=- The Railroad, 154, 0. C., 509, Johnstm Vs- The Railroad, 163, i. Ce If the Jury shall find from the evidence that the defen- dant was runnins a train of cars from the siding and in direction of the crossing, and thet it cut the train of cars, so that te engine and part of the cars ran over the crossing and a switch was thrown to divert or turn the balance of the cars into a side- track, making what is called and kmown as a flying switch- and if the Jury shall find that on the front end of the cars in the rear cut or section as it came towards the crossing, was a e or brakeman, and should further find that a fl was on the growd at the er ceeree and hollowed at the plaintiff= and should further find that the last cut of cars coming to the crossing could be geen there- an wmobstructed view. ; - Phe Court charzves the Jury that the defendant would not be guilty of nerligence and the Jury should aéisWer the first issue, To. If the Jury shall find from the evidence that the cars were cut in two partse one of which passed over the crossing 16. and the rear section followed= and should find that there was no obstructions and nothine to prevent the plaintiff at the crossing, if he hed looked,from seeing, the second section as it approached the crossinec, and should find that he did not look, if he did fail, would make hin guilty of Contributory Veglizence, and the Jury should answer the second issue, Yes. _° The failure of the Court to give the above instructions asked, constitute fefendant's thira exception. , CHARGE OF THE COURT, D. 3. Benson, the plaintifr, brings this action against the Director Veneral of Heilroads, seekimg to recover the sum of $2334.73, with interest on it from the 18th day of June, 1918, because he Says, on that day, the 18th day of June, 1918, he was traveline along one of the public highways or streets ‘@m the Town of “ooresville, this County, drivine an automobile truck; that the truck was worth 3691.74, he said; and that as he | approached the crossing place, where the railroad crosses the street, which he says was in ape ee section,on the street he ' was traveling, that they were ifting cars across. this crossing, and the manner in which they were doing it was 2 careless and negligent way, one in which they were not ee see reasonable care for the safety of persons crossing along over this highway ; in fact he says, they were making a flying switch, a certain number of cars hitched to the engine, and when approaching the switch, which was near the side of the street; that they woulg. go on at a high rate of speed, ahead of the cars, and along the switch, and, havines left the cars behind, they coming more slowly; the switeh would be thrown before they reaches there; that the cars would go on another track from which the engine had gone; and in doing this, it is contended that the persons Ste in the running ,were the eee eees ran,the mag that stood at the switch theweing the ewitch back and forth, anf the man, Atwell, who says pd on the step or ladder on the side of the front end of one of the care for the purpose of lifting the coupling arrangement that cut one car loose from another, and the brakeman who was on the sar; the: rear car in this instance, they they allese there was no one at the crossing to warn persons approaching when these cars were shifting there, and that by reason of the fact that there was no warning, no person there to warn them of the cars that were running along behing on their own 17. momentum, caused this plaintiff to drive his truck near the tracks, saw the enzine come up with one car to it, believed and an@o ao right to believe, they aiieye and contend, fnat it was the only car coming, when they had cleared the crossing and gone up, and he started hie truck, and as he got @m the track, e one Of the tracks, and to late to escape the car, because of its nearness to hir, that he saw. the box cars coming, not in time to t the truck entirely off of the track, but just in time for im to jump from it, but not so quick, bat that it etrack hin, and he was thrown there some 30 feet on the side of the track, and in doing this, he says his car vas wrecked and that the car was worth $691, and that he sustained injury to his leg and - ankle, and because of his pain and suffering, and his injuries, that he has lost part of the streneth and use of his ankle and that he is obliged to Weew a brace, and for this and all of the daracese he has sustained he aske, 2534.73. The defendant denies that it was guilty of nesligence in any respect there; says tat it came across the crossing, the defendant's cars crossed there in the usual wasy, and when- - ever the engine approached there at this time, the signal by the bell and whistle were-beine civen as to the approach to this crossing, and thie plaintiff had full knowledge that the train was passing slong there, and full oportunity to see the approach of the cars; that he was situated there, being there on level ground that be could see the approach of the car, and that any person approaching the crossing could easily see the car, and that it was not necessary to.a person there to wam anyone about something that was coming along there, when the person himself, if he hes used reasonable care for his own safety gould easily see what was ore nes and it denies, that it failed to give the signal by ringing the bell, and, also from the noise, that all trains make in roving and Operating, that he could have heard thats and it contends that it was not negligent in failing to give the warning of the epproach of the train there and the cars; but on the other bend, it says that the plaintiff was guilty of Confribu- tory Negligence; that is that his owm sa: elessness contributed to his is and that any injury that he sustained there was produced by a%§ for that, if he had looked up and down the track that he would have seen, before he ever started his car after he haf driven up to the track and waited for the engine to pass by, if he had looked to the right as well as to the left that he would have seentthe approach of these other cars, because it is alleged, there was nothing to obstruct the view, and in failing to dado so that he failed to exercise that care which @ prudent man would exercise for his own saféty, and thereby contributed to his injury, and, they allege that whatever injury he sustained were not darmmges for which, the Yirector “eneral would be liable. 4 18. How, then, these allegations m4 deniais raise these issues, which are submitted to you. - The first issue is, "as the plaintiff injuped the negligence of the fefendant,as alleged in the complaint?" i The Second is, "Did the plaintiff, by his om negligence, contribute to his injury, as alleged in the ansver?" The Third issue -is,"What damages, if any, is the plaintiff entitled to recover?", The burden of the first and third of these issues is upon $he Bpagot Lee eto satisfy you by the greater rifht of the evidenas’ 6: ruth. Greater weight or preponderance of the evidence does not mean a greater number of witnesaem-en one side or the other, you are not to count the witnesses and say upon which side there are a greater number, but it is the greater weight of the evidence itself, or the evidence put in a scale as it were to see | upon which side the scale goes down, which side has more convincing evidence, whether it come om his side or the other side, whether it shonld be elicited on cross-examination or otherwise. Hegligence is the doing of som act, whioh a reasonably prudent person would not do, or the failure to do some act which @ reasonably prudent person would do under the circumstances _ surrounding the situation. - In order to determine the question as to whether there was negligence or not, you would have to know what duty was due this How, the public, as well as the railroad, has reeipre rights at public crossings; and the duty of the operatives 0 — the railroad there was to use reasonable care tm running trains over the highway there to refrain from injuring any pers in gi signals and warning so &8s to wasrn persons of the approach of a train, and failure to exercise such care as that ani\ perform such duties as that would denstitute negiifence. i va 2 - Bat the mere act of negligence, if it was committed). would not entitle a person to recover damages, he is not entitled to recover, unless Je goes further and shows by the greater weight 19. of the evidence that such nogligence was the proximate cause of tia injury, because a person might be nefligent, ever so negligent, but if that negligence were not the proximate cause of the injury, if the ae was the proximate result of some other negligence, andi, though negligence may have occurred on the part of the defendant, such negligence in that event, would not be actionable negligence, and the Company would not be responsible. Now, by proximate cause is meant the dominent efficient cause, the cause without which the injury would not have occurred. How, it constitutes negligence, under the law, for a railroad company to make flying switches across a crossing at & populous crossing, where there is a great deal of traffic and travel, without havins «ome method or means to warn persons who may be approaching the crossing, attempting to cross, that loose cars are Se ee arian engine which has passed, across, which has been used making flyins switches. Now, such notice may be given in various ways, and the failure to exercise such reasonable care in the giving of such notice constitutes nerlizgence. | And, if the Jury sh 11d find from the evidence in this —@nme, that a train and ensine and some cas had passed across this place, and that loose cars were coming on behind, which the engine had etarted, and after giving ther certain momentum had run away from them in order that the switeh might be thrown before they arrived at the svitch, and there was no notice o¥ warning, by bell or whistle, or mo person to give -metiéa or warning to Benson as he approached the crossing that such cars were coming, that would constitute negligence; but, it would not be actionable negligence, unless it was the proximte cause of the injury, if he sustaineé an injury. How, it is contended that na such #étioce was given and that you should not find that it exercised reasonable gare. in any manner, either by ringing the bell, blowing the whittle, or by having a person there, and that no warning was given, either by the switehman at the switch or by the men on the cars before the striking of the truck, is the plaintiff's contentions in this actione 20. How, as to that, the defendant contends that he had noticé there of the @> proaching cars; contends that at this bime it was a crossing where a person could see everything approaching on either side of the crossing, and that as Benson approached this place, that he 4id hear the engine approaching and stopped his car, but he didn't stop the engine of his auto- mobile trucks that he saw the engime pass and go by and over the ‘crossing; that these care were coming in full view of him, . necessarily, it is* contended making some noise, so mch that if Re had listened, he would have heard that; that if he had lookea he would ‘have seen then, and that there was nothing to obstruct his view, and that at such a Place as that oor person, by merely using his faculties effeight ani hearing could see an object at some @istance from the crossing; and that you shoulda ot find that the railroad company was nerlic or the Director. eral, who was operating thetrailroad a thet? time, was negligent in failing to have other warnings given or other means for warning persons approaching there, ani that you shoulda say that that was not the proximate cause of the injury, the failure to have any | gach person there or means, or anything to warn him of thie, under tgose circumstances; that he could have seen anyone, could and afd, and, therefore, that the lack of these things or the failnre to ao these things were not the proximate cause of any injury he sustaine there, ani that there was no neglifzence. On theother hand, they cantend that you should find that they were using reasonable care eres that the engineer passing — along there whistled and rang his beli, or was doing both, as you my find the facts to be, and were giving ample notice of the approach. Now, 1f you find, under all of the circumstances, that the defendant, its employees there, were using reasonable care, such Care a& a reasonable prudent person would be expected to use under he circumstances in giving warning of the approach of the cars there, then you will answer the first isang: HO, that there was no neglirence. The burden is on the plaintiff to make the scale go down on his side, and if you find it evenly balanced, you wi answer it KO. If you find that there was no negligence, no failure ‘to exercise reasonable care for the safety of this plaintiff, nov s Sie failure to give warning, such as a reasonably pra@ent_man would give, to give warning at.a crossing of this kind, you will answer the issue, N90. If you answer the first issue*Yes" you will have to ess upon the other issues; if you answer it"HOF you can Ea the issues in that form and not answer the other issues at all. ’ The second issue is: "Did the plaintiff, by hic own ne@ligence, contribute to his injury, as alle ged$ in the answer?” The burden of that issue is upon the defendant to satisfy he Jury by the greater weight of the evidence that there was ontributory Serligence on his part, which contributed to his injury, ami that has to be shown by the greater weight, or’ pre- ' ponderance of the evidence. The law is that when a- person approaches a crossing, @ railroad crossing, that he must look for the approach of a train,) end, ordinarily, it is not sufficient that he look in one direction to see if a train is coming from one direction, but he must look ' in both directions, both to the right and to the-left for the train; and, if he is at a place where he can see the approach of a train, if he goes on a track and fails to look why that constitutes negligence @nhhis part, such es will bar recovery. 1 Now, &f there is any obstruction, if the railroad. company has allowed obstructions on the right of way or along the track or anything passing there on its - oor of way to be seen there, or allowed obstructions to be at there ani remain there, 80 tnat a person cou@d not see when he looked for the_ approach of trains, thence it is not negligence on his part, fail to observe the approach of a train in that direction, by reason of the obstructions that would prevent him) . ; The defendant objected to the above part o f charge in bracket and the same constitutes defendant’s fourth exception. (Also, that rule is modifies, if, under all of the circtmstanmces the jury should find that the act of fhe railroad company, or the defendant in this instance, there had been such acts or conduct in the oneration of te traina there as would lull a man into a sense of security, and caused him to believe and given him justification for eee no other cars were approaching the crossing, and lulling him into a sense of security tint would Ee Warrant him in driving on the. tarek, but he is required to we that care, which is reasonstile care, for his safety, and if he used euch care, then there is no negligence on his part . The ¢efendant objected to the atove part of the charge ‘in bracket and the same consttftutes defeniant*s fifth exception, but a porecs, a8 I say, is requires tc use Sige brads cere for hig _ own safety, that is, such cre as a reasonebl prudent penson would exercise for his own safety wider the circumstances and surroundings, when aprroaching the crossing, using his faculties of cight end hesring, and if he sees a train approaching a crossi go near that it would appear dangerous, that he conld not reaseaekty get across before the approaching train, then he mst stop and wait until the train passes, sets by, 30 that the train may be op: rated as its business requires | at undue interference of persons crossing over and upon the traeks. Now, the defendant contends that you should find that there Was contributory Serlicence upon the part of this plaintiff. Its contextions is that everything there was open and that there were no cross ties there thet would cbstruct the plaintiff's view from @ line of box cars coming abong that track; that a mn sitting in the seat of a truck, that he was high ee above the ground so that he could easily cee the car s approaching, Now, tmy cantend that the plaintiff admitted upon the stand that he didn't look that he conld have seen these cars, if he had looked, and so, it the Jury should find the facts to be that @f he looked up there he-would have seen these cars, then you would find that he failed to observe proper care for his ovn safety, if he did not look, because that is something that the law requires him to do, iff he conla 8066 ; Now, he says that there was a pile of cross ties there, you can say how that is. The defendant sags that not withstand th pile of cross ties being there that accerding to his own statement he could have seen up the track, if he had looked. (Now-~ You must fini whether he exercised reasonable care on his part, whether he had reasonable grounds for his failure to look up the track, whether the running of the eee across the track with one box sar to it and along by the switch and away from the crossing, whther he had justification in bedieving, in the exercise of reasonable care, that no other cars were coming, upon in the exercise of reasonable care to look up the tracks alm, because, if you should find that, if he failed to look both ways, he would be guilty of negligence, unless there was something 236 i | , a on the part of the railroad company done to lull him into e sense of security.) ACE ‘ } ont? ‘ The 4efendant objected to the above part of charge in ‘hractet, and the same constitutes defendan‘s sixth exception. AS Dat {f his injury was caused by a faivure to exercicea ‘ such care as that on hie part, ani thet that was the cause of his *. proximate aingumy, then that would constitute negligence on kh \ part, ané in that case, you should answer the second issue, “Sas”. 4 5 v7 ¥ It is contended that he ought to have seen it come thepe,),the cars had @ proached in full view, if he had looked, he could ba semit; that if he had shut off the motor of his car he cou}i |, x Yave heard it, and that failed to shut off his motor of his\\ WN automobile, and carelessly allowed it to run, when he knew that’ was in a place of danger; that it is a warning to anyone, it Iq eontended, when they approach a raijroad that there is a Now, that is the contention of the defendant. | ‘. ny ‘ \ | N ‘ > ‘ os te possi ‘of trains coming along, ani therefore they should use a high ae of'care in managing thelr own affairs, shutting of his own Or 5 etce, that they could hear, and under all drcumstances , the , WN defendant contends, that if he had shut his motor off, if he ha@ done that, that he could have heard them, and therefore, not I me across the crossing; that if he had looked up ani down the! rack, he could have seen tem approaching, and the mere fact that. the engine end car passed tere, was not euch an act as would lull him into such a sense of security as not to look for the approach of other cars, ani that yo. shcu'd find the facts to be 80. The plaintaff says that he drove near thie place and st@pp a at the edge of the track, that the engine and the car went up; (That he ha@ no reason to suspect that any loose cars were ooning gown the tracks and for that reason he didn't see them coming, @ian't hear them coming, end that he drove on the track) . Te defendant objected to the above part of the charge in the bracket and the sare constitutes deferdant's seventh exception. contnds that the switchman was stending 80 feet up the track ad gave no warning to him, and that there was a4 man on the bax cars for the purpose of liftin; the coupling devices there, that he aidnAt see him in time to give hi warning; that there was e brakeman on the car. two car lengths away and unable to stop the train, end he failed fo do so in time, and that those were the proximate cause > % ‘ \ AN R PA. <i X . of the injury, the failure to exercise reasonable care in having & person stationed there to do s0, and that this caused him to- ive ‘upon the track, and in doing so he contends that ou'should find t he acted as a reasonably prufent pewsen would, efter takinre due < regard for his own safety. - Ni . (Wow, if you find that he acted as & reasonably prudent rson would have done under all of te. circumstances, in driving 8 truck upon the tr x, and his failure to look or Observe the cars coming, to see then coming was Justified, as a prudent MAN, reasonably pr&dent man, then you wil® answer the second issue, "NO", ) The defendant objected to the above part of the charge in the bracket and the sane constitutes defendant's eighth exception. If you answer the first issue "Yes" and the secona issue, "Ko", you come to the third issue: "That ‘amazes, if any, is the plainti?# entitled to recover?" lie would be entitled to recover, Gentlemen of the Jury if anything, such a sum as would compensate him for the injuries complained of, : Now, he says, that his car yas wrecked and ruined, ani that yit was worth $691.74. If you should fina that he lost that meb in the destruction of his car, he would be entitled to recover that mach for tha oar, or such sum as would compensate him for the care In addition to that, he Says he was dragged along the track some 50 feet, and his leg was injured ani his ankle, Causing him grekté pain and suffering. If you find that he is entitled to damees for that, he is entitled to resover such Sum as would compensate him fcr such bodily suffering and such mental suffering as he endured by reason of these injuries. | - ' He says not was he caused re tat being dragged * along there, but that he still does suffer he has a weak ankle, has to wear a brace, ani therefore he can't get about as he could before, in fact that it detained him from his work for @ number of weeks, six weeks, I believe, and caused hin aloss in his earning capacity made in the wages in operating his motor truck, and he lost the use of the motor truck, and £11 those things he says, amounts to $2334.74. low you will say how that would be. The defendant says that you should not come to that issue, but, if you do that you should give him no such amount, but that @ much _ smaller sum would wompensate him. 256 You are the judges of that ou are f | from the evidence and take the law a " oe find the facts the evidence hero and say how ig Court and apply it to : "ake the case Gentlemen: The Jury return v fn favor of the weetis. answered all of the tssues Motion by a@efendant for a new trial . 4 for errc ng Same sate otres on hy St Ge Le ietaatata get ppea the 4 serene © a iveeere of appeal waived in ooce Peak, Aopeit fond fixe 00 and a judge sufficient. 40 days allowed the a efendants fron the 67405 SPY POS cP Osmeaee aiyiake SOMys thereafte , ee The following is the judgement in the cause: D. Be Benson, vs~- John Yarton Payne, Director Yeneral of Hailroads, as agent under gection 206, transportation October, This cause coming on to be heard and being heard at this term of the Court before His Honor Henry P. lane, Judge presiding Honor having submitted, to the Jury the follewing Jury answered as herein set out, tomwwits ured by the negligence of the defendant 36 la Answer- Ye 2. Did the plaintiff by contribute to his injury 28 alleged in the answer? Answer- 3o. + damage, if ary. 4s plaintiff entitled to recover? Answer- 1,500.00 It is therefore compidered and adjudged that the plaintiff recover of the a@efendant the sum of Fifteen Eundred Dollars, with interest from the gecond day of August, 1920, at the rate of six cent per anmmm till paid, together with the costs of this per action to be taxed by the Vlerk of this Court. Tike Pe Taney | 266 The following are tie defendant's exceptions and assign- ments of error: First: Theat the Court erred in failing to nonesuit the plaintiff at the conclusion of plgtr ar its c - - _ 7 = x “e ¢ Seconé 3 | Theat the & erred in declining to non-suit the plaintiff at the close of all of the evidence. Third ; For that the Court erred in refusing to give the special instructions asked for by the defenéant. Bourths Theat the Court er Six charging the Jury as follows: "Now, 1f there is any obstructions, if the Railroad y Company has allowed obstructions of the right of way or along , the track, or anything passing there on its right of way to be seen there, or allowed obstructions to be there, and remain; so that a person could rot see when he looked, the approach ~ | of trains, then it is not negligence on his part? Fifth: Theat the Court erred in charging the Jury, “also that \ rhle is modified, if under all of the circumstances the Jury __, should find that by the ict of the keilroad Company or the ok aefendant in this instance, there had been suck acts, or conduct *. in the operation cf the trains there as would lull a man inte .. \-° a sense of security and cause him to believe and given him | Q ustification for believeing that no other cars were approaching + he crossing, and lulling him into a sense of security that . \ would warrant him in d@riving on the track, but he is required to use that care which he dces in all matters,’ whick is reasonable care for his safety, and 4£f he used such care then. there is no negligence dn his part. Sixth: eat the Court erred in chsrging the Jury as Follows: =~ ...- Se oe 2. ew ee fD.wm Ww 27. "How, if you find-you must find, whether he emercised reasonable care on his part, whether he had reasonable gromds for his failure to look hp Lne track, whether the funning of the engine across the track with one box car to it, and along by the. switch and away from the crossing, whether he had justifi- cation in believing in the exercise of reasonable care, that no other cars were coming upon him, in the exerc&se of reasonable care to look up the track, also because to look up the tracks also, unless you find that, if he failed to look both ways, he would be guilty of noglisence, because then there was nothing on the part of the railroad company done to lull him into a sense of security? Seventh: Theat the Court erred in charging the Jury that he kaé no reason to cuspect any loose cars were coming down the track and for that reason he didn't seee them coming, didn't hear them coming, and that he drove on the track, A Eighth: That the Court erred ih charging the Jury. “"Now, if you find that he acted as a reasonable prud person, would have dome under sll of the circumstances in ~ yf ent @riving his truck upon the track, and his failure to look oF observe the cars coming, tc see them coming, was justified, ly prudent man, then you would answer the @ prudent man, reaconab second issue, "Hot Ninth: Por that fhe Conxt orred in sefus Pi paomateasty the Court as oy ee Tenth: Por that the Court erred in signing the judgment in behalf of the plaintiff. North Carolina, Iredell Comty. In the above entitled cause, an appeal having been taken to the Supreme Court, by the defendant and the Court having set the bond eat 350.00 and adjudged the same suffi- cient, now therefore, John Barton Payne, Director Cereral, as Principal, and Janes E. Boyd as surety acknowledged them selves indebted unta the plaintiff for the sum of $60.00, well ané truly to be paid. The condition of this bond is such, that &8f the defendants in said cause shall pay or cause to be paid, 211 such costs as may be ad judged: acainat them, by reason of this appeal, then this obligation is to be null and void, ot:erwise to remain 4in full force an@ effect. J. EZ. Boyd being duly sworn eays; that he is worth _G@ouble the amount of the above bond, above all debts, liabilities, and oxemptions allowed by lav. Sworn to and subscribed before me this the day De Be Benson, AW John Baryon Payne, Director General, Et-Al. Case of Defendants. on appeal to Supreme Court- tendered as proper case- Service of case on - appeal by copy accepted- This August 30th, 1920. He Pe Grier. The foregoing record shall constitute the record of the case on appeal to Supreme Vourt. The defendants ee have ten days to rearrange and collect his exceptions ané assignments of - exrrore Henry F. lane, Jauige Presiding. Received in Clerg's office January 20th, 1921. J. W. Sharpe, Deputy Clerk, Superior Court. Tis case was filed in this office by Counsel for Defendants as the case certified by the Court as s proper ease on appeal January »il9cle Ih THo SUPRBS COURT. D. 3. Benson, ities We D. Hines, Director General of failroadse Prom iredelle Be it remembered that at a superior Court, ae and held in and for the County of Iredell, on the 5t Lionday, before the lst t.onday in september, the same being the 2nd day.of August, 1920, when and where His Honor, Henry FP. Lane was present and presiding. The following proceedings were had tomwit: This was a civil action instituted by the plaintiff, ~ against the defendant to recover damages for the alleged negligence of the defendant. The pleadings herewith sent show the contentions of the parties and the facts in the oase. SULIONS. D. Be Beswon. 2 i ° Against, W. D. Hines, Director Ceneral of Hallroats.. STATE OF HORTH CAROLIWAS. ie of Iredell County-—GREETING: YOU AR2 HEREBY COMMANDED to summon ¥W. D. Hines, Director . General of Railroads, the defendant—above named, if $0.0 85 be found within your County,. to be and appear before Shae ras. Judge of Our Superior Court, at a Court to be held for % Mi Se oy County of Iredell at the Court House in Statesville on the. aN Lith day after the lst lionday of larch, the same being the 19th day of tiay » 1919, snd 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 defendant take notice if they: fail to answer to the said complaint within that time, > plaintiff - will apply to the Court for the relief demanded in aint.° Hereof fail not, and of this summons make due returns : Given under my hend and seal of said Yourt, this 1jth day of Lerch, 1919. oN \ . > XM IS —d._A. Hartness, ; Cierk of 5 Received, 3-10-1919. Serve, $-11-1919. By reading and leaving (Signed) H. ¥. Alexander Sherit? of lre-ell County. R. Le. Cloaninger, D. Se his was a suit in forma pauperis. SUMMOW FOR RELIEF.—Judge.—Printed and for sale by Brady Printing Company, Statesville, N. O. Sd. Ece County—In the Superior Court. SUMMONS FOR RELIEF. defendant_- above named 4 i... be found within your Spperion Cot tt « Co to beheld for the County “tA Pek Roics ae mday after the- the same ie the... nee Se b rhuange sana 191°7_., and answer the complaint, a copy, of _ which will be deposited in ne roa of th Clerk of the Superior Court for said County, within the first three days of said Term, and let said Defendant--_-_-- take notice eta ine fail to answer to the said complaint within that time, the plaintiff ee will apply to the Court for the relief demanded in the com- plaint. a ~“Hereof fail not, and of this summons make due retary. /, Given under my hand.and séal of said Court, this: slay vt dia scat omc 01.7 ¥ = ms "oT [GT “Ula ---- Sonoma n nn To? ORTSRAN OY this Z 7. | EO EE Roo RE OR dITIU YOI SNOWWAS | | os GS aaé “AOMIONY 8, Hawi T S$. 6 s 3s as §& , ot gg See in at ee ieee pe 6 iene tieence memes > ® o ' Py : ae 1 @a@2asg et a re ree | ‘ = z ' bed = : ' ! t zo : ’ Pi Su fF ig a = a '2 & > © - ve 4 { \ i S : ‘ eee! : = : > } : ~) | ! — tos ° 5 ~2 : ; = ( 1 ig ~ A. S < 1 1 ~~ ' ! wid - i S ' 1 t ' Lad Ln a 4 1 6 1 fal ~ 1 @ 1 : ; T \ j 2 C . ' Q a es > ‘ : = ! 4 i Sa ee 3 +30 fF PB UNNY | & S ; a ia ON + 3 c S > S| ; * & ru : $ 2p NS bY Lg a . ° ! < ' ’ a ined x ‘ | " a 3 0 Me SSL FES : © | = m i ' ' ~ CS tt RM a 1 3 i j , al } © 4 : + : o i = 0 too — 4 ' , «= ' ms ~~ ' 1 1 { a ; eet 2 mM 1 SS 1 ' e oe fran by : ! 1 ' g o ae - ' PB ey ee ‘ : yeas > 4 ° B te i = = bs : (“%* = YS | 3a™“ : m=) ° pm Ver “£yumo0g--~--~~---- “--Jo yM0Q {Mysedng oy} Jo : 4 = \ ; ° 1 1 \ ’ ' 1 \ ' ' \ ' ' 1 ' eee, ie r Se = me mor as Mase bd Ss. ott STATE OF NORTH CAROLINA Sworn to and subscribed before me this Witness our hands and seals, over and above his debts, liabilities and property exempt from executions. cost as the Defendant_¢.-__ may recover of t ee ee ee ee ee ee ee ee ee eae ee ee ee ee ee ee t,. a ili ey a North Carolina | In the Superior Court | Iredell County | As of May Term, 1919 | Fe Le Moore, j V8. J COMPLAINT. i i Southern Rwy. Company, JeH. Sands & Company. The plaintiff, complaining of the defendants, allegen: le That the plaintiff is a resident of Iredell County, North Oarolina, 2. That the Southern Railway Company is a corporation duly organised from the laws of Virginia and operates its railroad through the State of North Carolina, and was at the time hereinafter mentioned, and ie now engaged as com- mon carrier for passangers and freight over its various lines, and as such carrier of passengers and freight, operates a line from Saliebury, N.C., to Asheville, NeC., and beyond, by and through the village of Elmwood, N.C., where it mintains a depot and side track and lumber siding for its customers. 3. That J.H. Sande & Company is, es the plaintiff is in- formed and believes, an inoorporated company duly organised under the laws of Virginia, and was at the time hereinafter mentioned engaged by the Southern Railway Company in re- pairing its track and in performing ite work used and operated a train of cars with an engine, which was operated over the Southern Railway Company 's tracks in repairing ate roadbed and tracks, and was so engaged at the time herein- after mentioned, 4. That the Southern Railway Company maintained at Elawood, N.C, @ lumber yard adjacent to ites side track for the use and convenience of its customers in unloading and stacking « umber for shipment over its line of railway. Po, | 5. That the plaintiff unloaded and stacked on said yard adjacent to said side track for shipment over ite line of railway to his customers 20,791 feet of pine lumber of the Value of $517.75 and wae waiting for a oar within which to ship said lumber, and while said lumber was on the yard aforesaid, the same was destroyed by fire under the cir- cumstances hereinafter alleged. 6. hat on the 9th day of September, 1918, about 3 o'clock in the morning, defendant, J,H. Sends & Company, had a chain of box or shanty cars standing on the Southern Railway Com- pany‘'s side track, at Elmwood, N.C., which were used by the crew of said Sands & Oompany while in the employ of the Southern Railway Company for cooking, sleeping and other purposes; that on the said night, and about the hour of 3 o'olook in the morning, the defendant carelessly and negligently permitted its shanty or box oars to be destroyed by fire and negligently permitted the fire from ite shanty or box cars to communicate to the lumber of the plaintiff and destroyed the same to damage of $517.75. 7. That after said fire was burning the box or shanty cars aforesaid, the defendants carelessly and negligently permitted said fire to communicate to the plaintiff's lum- ber, failing to make any effort whatever to prevent the plaintiff's lamber from being destroyed by the fire afore- said, 8, That as the plaintiff ie informed and believes, and sO elleges, that on the night of the fire, the defendant, Sands & Company, carelessly and negligently permitted the care to become ignited from its lights or fires in said shanty cara by leaving the same unattended, unprotected and unguarded, by reason of which said care were destroyed _: by five and said fire commnicated to the lumber of the f plaintifg on the yard aforesaid, by which it was totally 2 destroyed to the pleintiff's damage of $517.75. WHEREFORE, the plaintiff demands judgment in the sum of $517.76 and interest and costs of action, and in such other and further relief as the plaintiff my be en- titled to. AA Log be Te Wy MEK newt Cae [itorteye For the Pisint North Carolina | Iredell County | FP. le Moore maketh oath that the foregoing complaint ie true of his own knowledge, except as to those matters enf things stated on information and belief, and as to those he believes it to be true. Subscribed and sworn to before me, this the RRS * 1919 ae day of NORTH CAROLINA, IN THE SUPERIOR COURT. GUILFORD COUNTY. AS OF MAY TERM, 1919. F. L. Moore, — Ve. ANSWER OF J. H. SANDS & CO. Southern Railway Company, Je H. Sands & Company. The defendant, J. H. Sands & Co., answering plaintiff's complaint says: I. That the allegations in article one of the complaint are admitted to be true. ile > = ‘In answer to the allegations in articie two of the com- plaint, the defendant admits upon information and belief that the Southern Railway Company is a corporation duly organized and exist- ing under and by virtue of the laws of the state of Virginia, bus it denies upon information and belief that on the date alieged that the Southern Railway Company was engaged as a common carrier for passengers and freight and upon information and belief it further denies that it operated at the time alleged in the complaint @ line of railroad from Salisbury, NW. C. to Asheville, N. C., and other points, and that itt maintained a depot and side track and lumber siding for its c.stomers as alleged in the complaint. III. In answer to the allegations in article three of the complaint, the defendant admits that it is an incorporated Company, duly organized undér the laws of the State of Virginia, but it denies that 8 times alleged in plaintiff's compleint, it was engaged with the Southern Railway Company in repairing its track and that in performing its work it used:and operated a train of cars with an engine, which was operated over the Southern Railway Company's tracks in repairing its roadbed and tracks and that it was so engaged at the times alleged in plaintiff's complaint. IV. The defendant denies upon information and belief that the Southern Railway Company maintained at Elmwood, N. C., a lumber yard adjacent to its side track for the use and convenience of its customers in unloading and stacking lumber for shipment Over its line of Railway. Ve The defendant has no knowledge or information sufficient to form a belief as to the truth of the allegations contained in the fifth paragraph of the complaint and therefore denies the same. VI. The defendant denies each and every allegation in article six of the complaint. > VII. \ defendant denies each and every allegation in article seven of complaint. VIII. The defendant denies each and every allegation in article the complaint. WHEREFORE, having answered plaintiff s complaint as fully as it is advised it is its duty to do, prays- that it go without day; that plaintiff take nothing by his action, that said action be dismissed and that defendant recover its cost to be taxed by the Blerk. | State of Wt ltt. of Je M. DARDEN, being first duly sworn says that he is Vice President and General iianager of the defendant, Sands & Company, and as such is familiar with its business; that he ‘has read the foregoing enswer and knows the contents thereof; that it is true of*his own knowledge except as to matters stated therein upon information and belief and as to these he believes it to be true. Sworn to and subscribed before me, this Dike aay of October, 1919. Suet deted Bot 13%/4/p 9 i thafe ot aA, 7 - North Carolina, f{ In the Superior Court, Iredell County, | As of May Term, 1919. F. L. MOORE, i Vs j SOUTHERN RWY. COMPANY, § |#=ANSWER OF SOUTHERN RAILWAY COMPANY, Je H. SANDS & COMPANY. | Southern Railway Company, defendent, without waiving its motion, heretofore filed, answers the complaint in this cause and says: FIRST, 7 First paragraph of the complaint not denied. Second. It is true that Southern Railway Company is a corporation, duly and originally organized, existing, under, and by virtue of, tne laws of the State of Virginia, but it denies that on the date alleged, that it was engaged as the common carrier of passengers and freight; it denies that it operated, at that time, a line of railroad from Salisbury, N.C., to Asheville, N.C., and other points, and it is denied that it maintained a depot, a side track and lumber’ siding for its customers. THIRD. Southern Railway Company has not sufficient knowledge and information to form a belief as to the truth of the allegations con- tained in the third paragraph of the complaint, and therefore denies the same. FOURTH. The allegations in the fourth paragraph of the complaint are not true, end are denied. PIFTH, Southern Railway Company has no kmowledge or information suffi-= cient to form a belief as to the truth of the allegations contained in the fifth paragraph of the complaint, and therefore denies same. SIxTH. Southern Railway Company has no kmowledge or information sufficient to form a belief as to the truth of the allegations contained in the sixth paragraph of the complaint, and therefore dentes Same SEVENTH. Southern Railway Company denies theallegations contained in the sementh paragraph of the complaint. EIGHTH, Southern Railway Company has not sufficient knowledge or in- formation to form a belief as to the truth of the allegations contained in the eighth paragraph of the complaint, and therefore denies the same. And for further defense to plaintiff's cause of action, defendent says: That at the time of the alleged destruction, by fire, of the lumber at Elmwood, Southern Railway Company, together with other transportation lines, had been, by, and under an Order of The President of The United States, taken over hy the Government for Governmental purposes, in the transportation of the troops, supplies amd other things necessary to the successful War Policy engaged in, and still is under absolute control and management of the Government; was not at the time heretorore alleged, or other time since said date, liawvle for any damage or default by the Government ob agents of the Government operating Southern Railway Company. It is advised that it is not only, not proper party to this suit, and the same should be dismissed as to it, but no recovery can legally be had against it, and having fully answered, it asks that it recover its cpsts in its behalf expended, and go hence without day. € > CG : i: S 4 BeA-Cowan makes oath that he is the Agent at statesville, and derives his authority for his acts by and under an Order of ‘the President of the United States taking over Youtnern Railway Company, for Governmental purposes, and that he has read the foregoing answer and that the same is true of his own knowledge, except to those matters and things stated therein upon information and belief, and as to those he believes it to be trueée Sworn to and subscribed before me this day of 19196 Worth Carolina Superior Court Iredell County .. May Term 1919 Leo eee | Cte F scuinerh taxiing Sdjpany Wy ant through {00 som, | Caléwéal & ‘Caldwell enter a special appearance in this cause, | | and move the court to dismiss the same for the following reasons: That under an Act of Congress, Southern Railway Company, . together with other Railroads in The United States, onthe lat. day. of January 1915, were taken for Governmental purposes, out of the eontrdol and management of their then respective officials, together with all appliances and employees operating aid Rail- e-™ placed unier the absolute control of a “Direstor General” eof Railroads” and that since said time, and at the time of the allegeé wrong the Director General of Railroads has been in the fall absolute, and continuous control of Southern Railway Company im all of ite bfanches, operating, and controling the same free disehargea from all participation therein by Southern ‘Railway Co. That Southern Railway Company at no time since January ist. 1918 has had any agent at Statesville or elsewhere; that on said date B. A. Coummm, upon whose service of @ummons was made was not the ageht Southern Railway Company, but was the agent of the Direetor General of Railroais, That no act or thing was done by Southern Railway Company since said date, and it can not be responsible for the aete of the Government. The property or tne said Company having been in- voluntarily taken for it by a paramount power, and in the euelu- sive egatrol and. operation of the Bovernnent at the time of the Act complained of. . « et ‘Oy Wherefore it prays’” the Gourt to dismise the action as to it. 4 ce es ns le PS? ce patra Tremere nm Civil Subpoena.—Printed and for sale by Brady, The Printer, Statesville, N. C. 2M—5—,04¢. | | STATE OF NORTH CAROLINA, To THE SHERIFF OF a ounty--G ETING: e Wou are hereby Commanded to Summo in contrgVersy before said Court HP BLns: and then and there to be. tried, wherein —. dhe damcysacepetatencsasent ; — "Ne 7 © { | SIP, Civil Subpoena.—Printed and for sale by Brady, The Printer, Statesville, N. C. 2M—5—,04. STATE OF NORTH CAROLINA, To THE SHERIFF OF hot ece. County--GREETING: e Judge. of Superior Court, at thewexts ee ha Defendent.~ And this you shall in no wise omit, under the penalty prescribed by law. 4 , Clerk of*our said Court, at office in Monday in | 4 a WORTH CAROLINA SUPERIOR COURT IREDELL COUNTY IREDELL COUNTY, AUGUST SEEM, 192 - LOCKE MOORE Ve JOHN BARTON PAYNE, Director Gensral of Railroadg, and SANDS & COMPENY This cause being called, and it appearing to the court that Page & Moore and W. L.- Davis ate plaigtiffe in actions against the above named defendant, which actions are pending and at issue at this term of court, and it further appearing that the parties have agreed that the afresaid actions shall be consélidated with this action, and the issues tried together; It is, therefore, ordered that the actions of Lecke Moore and Page and Moore and W. Le Davis v. the above named defendants be, and they are hereby consolidated, so that the issues raised by the pleadings therein may be heard and Bessed upon by the jury in one trial. STATZ OF NORTH CAROLINA COUNTY OF IREDELL LOCKE MOORE, PAGE & MOORE and W. L. DAVIS, Ve JOHN BARTON PAYNE, Director General of Railroads, and SANDS & COMPANY Haas .0nre, u~@nry Fe MANC, sUNge 2rresiaing. This cause coming on to be heard and a jury being impaneled answer the issues submitted to them as follows, ty~wit: le Were the plaigtif“’s' property damaged by the negligence of the railroad company, as alleged in the complaint? ANSWER; _ Mee . 2. Were the plaintiffs' property damaged by the negligence of the defendant, Sands & Company, as | alleged in the complaint? AEEWER: Joe | Se What damage, if any, is Lecke Moore, plain- tiff, entitled to recover? ABSWER ; | 4s Wat damage, if any, are.plaintiffs, Page & Moore, entitled te recover? 7 ANSWER; 5. What damage, if any, is plaintiff, W. L. Davia, entitled to recover? ANSWER ; i- It is, therefore, upon motion, ordered, ad= judged and decreed that plaintiffs take nothing by their defendants actions, and that thdég recover their costsef this action to be taxed by the clerk. Mes, 41, 2% 4p Bill 8 Cais Ciyie Ered and for sale 0 oF Baty Priming Co., Statesville, N. C. Original Summons, or other original process, including all MOU TAM wa oie ie Ww ee ee ks $ Docket, Every copy ofsame... .---- 2+ ee ere No. i Bond, including Justification. ...-- +--+ + ese IN THE SUPERIOR OUR as Y a iF Injunction Order, including Bond and Justificatiun . . . - Order of Arrest Subpoena, each name Notifying Solicitor of Removal of Guardian . Continuance. . . Caveat fo a; will, entering and docketing. Issuing Commission. Affidavit, including Jurat and Certificate Seal. . . Motion, Erstry and Recard of Notice Notice, for each name over one in same paper Impaneling: Jury Justification; of Sureties, except as otherwise provided. Judgment fjnal in term time.. Judgment final before Clerk Judgment ip favor of Widow’ s Year's Support Docketing same Docketing «x parte Proceedengs ee Indexing Judgment.. Filing Papers Postage, actual Transcript of Judgement. Execution of Sherriff's Return . Appeal to Supreme Court, including Certificate and Seal . . Transcript to Supreme Court. . . . copy sheets, each. . County Tax, when jury impaneled Referee’s Allowance [6 “way ‘ susp (epor ays 4q pexiy sy) , a ts “TIAD-S1S0) 40 THA Be LAAIOT TIAII ‘ON SUMMONS FOR RELIEF—OIVIL CASES—Clerk—Printed and for sale by Brady Printing Compaty, Statesville, N. C. setae anes Iredell ------- _County—lIn the Superior Coutt. Oe Oh ee we a 8 OF HOON BARE DORMS wee OOS Ow wee OO OOOO Oe COCR OR OOP eee eee eee eu 0 we we 0 ag mo 0s Oa at as Ot ase a Pe ae RD OF OS ED ED EO CD OD ED CY EVE OSS SS AGAINST SUMMONS FOR RELIEF eee ees o Oe tab A ces GOA 008. Gn 08 PO 0s ee ey oe BS > 0 we sO ans oe Ob wet em os a m0 wm in glo wm cn a me Oe ew EB En Dn SS eo we 0 oe on os bn Oe wt 0 hat 0 a nt OI ROSS ODOR BOM emma eo ee ee es ee a ae ele ae bat ae On we an ons eo ee oe Ot ae 0 FS i ee OO in Oy OD 8 ho 8 AD OP OD STATE OF NORTH CAROLINA, aa To the Sheriff of .._._----- Iredell - _ _____-~County——GREETING: | ee ea er a a a a a a ala es aa re ee es ee re ee ow ee 8 a nT FST Mo sno en ne nn en nnn nen sO wo ww oe ow wo er rw re er ne nn a a I De ee ee on oa eo ee ee a a a a a ee ee eT aan ee wo er er ee a ee wr rn oo I eee mew eee me meen emer e ere en ee a 9 be rr rr eee en nn on nn nn nn oc ckreinei nee thie emnetndaehdencn enna snatasen ad Sentseeeees gates nae emma ema aRs aR m Ree RR SORES CIOS SSSI SORTS” perior Court for the County of------- Iradell -__, on the L2th._-day of ----- Octedar, .-.-.-----.---- 192.6 and answer the complaiit, a copy of which will be deposited in the office of the Clerk of the Superior Court for said County, on or before the return date of this summons, and let__ Ab_______-___--_--- +--+ take notice that if. 2a fail&to answer to the said complaint within twenty days from said return date, the plaintiff___-will apply 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 28tDday of -..captiemb a a a a a Ow we ww ee ee eee wee *fhuvdmey Leap y;;- urouI ey -{quepuczep ous-ze-~3108e-+usasy AVE 09 wuemmN UT TM way ze ee eae ee aera eee een na na (ea) wooo eee ----------- (Seal) owe eee aden eer een neeseean-—= (OOK) BOND ALLOWED TO SUE AS A PAUPER a af a ee gr te el ee ee ace { Adeo-e-Sutroxt tos pure Pappwex -£y J e6l---* wey -xvqmSeAWsg----- sao Beer ‘HIBS Tequeyey—-- pearoooy — | ; In the Superior Coutt. j { JO yang solsedng 04} Jo yI21Q a} JO aoGJo "yy our sfep-------------- UNUM eqeumey — | dHaITAY AOA SNOWWNS OR OO Om Oe ef eee ee eee wwe we eee oo mew wo oeoeoen J dgae blackness Oey AGAINST Witness our hands and seals, this___...day of..-.----___----_-_--___-_-__--__________-_A. D., 192---. Sworn to and subscribed before me this_____.day of We acknowledge ourselves bound unto LL Ee ee ee ee ee Se ee ee ee ee ee ee however, if the Plamufl <...-.- eeepc ectnnc-s-—-AAll pay the Defendant.__.._..all suel o----------------------------- +--+ +--+. --~-----. .- ...being sworn says he is worth the sum of two hundred dollars the Defendant_-_-- in this action, in the sum of__.-..-------________._-_________-_--.._._________Dollars, to be void. cost as the Defendant__._._may recover of the Plaintiff__.___in this action. over and above his debts, liabilities and property exempt from executions. eee eee eee ee ee ee ee eee ae ee a ee ee ae ee ne ee ee ee ee ee eee ee ee ee tition <, é s S U <7 » x Oo Z ee Oo tu to < i ” Nerth Carelina, § In the Superier Court, Iredell Ceunty. } Yefore tne Clerk. E.8. Rucker i Vse § aPPLICATION TO SUE AS A PAUPER. Southern Railway Company } Te J.A. Hartness, clerk ef the Superier Court ef Iredell County: This is te certify that we have examined the case ef the plaintiff in the abeve-entitled actien, and believe that he has a good and meriterieus cause ef actien in fact and law. This September 28th.,1926. ; Lewis & Lewis Merth Carelina, | Iredell Ceunty. E.S. Rucker, after being duly sworn, says:That he is unable te give sureties, or make the deposit required by law, te enable him te presecute the abeove-entitled actien against bhe defendant, Seuthern Railway Company, and therefere prays:that he WAY. be allewed / EWS. x [UO har Fy te sué in said action as a pauper. Sewrn te and subscriped befere me, this the_28 Septemper , 1926. Merth Sarelina, In the Superier Court, Iredell Ceuhty. § Befere the Clerk. E.8. Rucker 4 Vse | ORDER GRANTING LEAVE TO SUE AS A PAUPER. Seuthern Railway Company } In the abeyge-entitled actien, upen the certificate and affidavit abeve set ferth,it is erdered: te prosecute 1lst.That the abeve named plaintiff, E.S8. Rucker, be allowed,his saic suit egainst the defendant, Seuthern Railway Company, as a pauper. 2nd.That Lewis & Lewis be assigned te him as ceunsel te presecute said actien. ~ "9°S°9 "ade ‘*u3eg seqmeqgdes stu peTta Nerth Carelina, } In the Superier Ceurt, Iredell Ceunty. } Befere the Clerk. E.S. Rucker { Va8e i COMPLAINT. Seuthern Railway Cempany } The plaintiff cemplaining ef the defendant, alleges and says: ist.That the plaintiff is a citizen and resident ef Iredell , Ceunty, seats ef Nerth Carelina, and that the defendant is a Cerperatien,created,erganized and existing under and by virtue ef the laws ef the State ef Virginia, and is and was at all times hereinafte mentiened in pessessien ef and eperating a line ef Railread in and threugh the City ef Marien, in the Ceunty ef McDewell, State ef Nerth Carolina,tegether with its tracks,yards,lecemetives,cars and ether appurtenances therete belenging. 2nd.That en er abeut the 15th. day ef June,1926, in the night pliantiff was time, »;ohbebobehi&k while walking acress a side track ef said defendant just West ef the ees statien at Marien, Nerth Carelina, en a public read er street which cresses said side track, and which was then used by the public and was recogBized as a public cressing fer the use ef the general public, the defendant, in eperating and backing ene ef its lecemetives and train ef cars ever and aleng said side track, sx@demtemubewOabies negligently and carelessly, by failing te keep a preper leokeut fer persens er plaintiff en said public cressing, by failing te seund a whistle er signal ef any kind er descriptien se as te warn plaintiff ef the appreach ef said train ef cars while being backed,by failing te have a flagman er ether persen en the rear ef_said train ef cars er at the said public cressing te warn er give plaintiff netice ef the backing upen said public cressing ef said train ef cars, and by failing te have a light en thé rear ef said train ef cars se that it mewb@ have been seen by Me plaintiff er any ether persen upen said public crossing,caused said train of cars te back ever and aleng said side track and upen said public cressing, striking plaintiff with the rear ef said train ef cars with great ferce and vielence,imecking him dewn and dragging him aleng said side track en the greund,bruising end mangling his bedy and arms te such an extent that beth arms had te be and were amputated abeve the elbe and right near the sheulder. SrdeThat by reason ef the Ghveaeiwluasa, negligence and carelessness ef the defendant as aferesaid, in eperating and backing said train | ef cars ever said side track and upen the public cressing where ' said side track cresses said public cressing, which 2220S OD0028GK negligence and carelessness ef the defendant caused plaintiff te be struck by the rear end ef said train ef cars as hereinbefore alleged, causing him te suffer geab pain and anguish ef beth bedy , and mind, and perminently injuring plaintiff by causing him te iene beth armaright near the sheulders, thereby rendering it impossible fer him te earn a living either fer himself er his wife and small children whe are dependent upen him fer thetr suppert, er te de any thing fer his happjgmess er cemfert by the use ef his arms, but making it necessary that he be fed and cared fer very nearly as an infant baby, all te his great and lasting damages in the sum ef Thirty Theusand Dellars, WHEREFORE, plaintiff demands that he be granted judgment against the defendant fer the sum ef Thirty Theusand Dellars, «ad that the cests ef this actien be taxed against said defendant, and fer such ether and further relief as may be just and preper. Attorneys oo plaintiff. Nerth Carelina, } Iredell Ceunty. } E.S. Rucker, after being duly swern, says: That he is tne plaintiff in the abeve entitled actien, and has read the feregeing cemplaint, and that said cemplaint is true ef his ewn knewledge, except as te these matters and things stated therein upen informatien and belief, and as te these matters and things, he beleives it tebe true, Swern te and subscribed befere me, this the 12t Deputy Clerk Superier Ceurt. Filed this Octeber 12th., North Carolina. In the Superior Court. Iredell County. E. S. Ruoker 6 6 NOTICE OF R2MOVAL OF THIS CAUSE TO -vs- ( THR UNITED STATSS DISTRICT COURT 0 FOR THY WESTERN DISTRICT OF NORTH Southern Railway Company. 4§ CAROLINA. To Lewis & Lewis, Attorneys for Plaintiff in the above entitled action: You will please take notice that it is the purpose and intention of the Southern Railway Company, the defendant in the above entitled action, to file a petition, affidavit and bond asking the removal of this cause to the United States District Court in and for the Western District of North Carolina. This 23 day of O.f » 1926. SOUT We hereby accept service of the above notice and waive service of same vy an officer. | mie 23 aap or Oot <—T™ _, 1928. £ , st p ; Clrney ft: PLEA North Carolina. In the Superior Court. Iredell County . B. S. Rucker PETITION FOR REMOVAL OF THE CAUSE TO $ § Tie ¢ UNITED STATES DISTRICT COURT IN AND FOR § THE WESTERN DISTRICT OF NORTH CAROLINA. 6 Southern Railway Company TO THE HONORABLE THE SURZERIOR COURT OF IREDELL COUNTY, STATE OF NORTH CAROLINA: The petition of the Southern Railway Company, defendant in the above entitled action, instituted and pending in the Superior Court of Iredell County, respeotfully showeth unto the Court: That your petitioner, the Southern Railway Company, is a corporation originally created, organized snd existing under the laws of the State of Virginie and is a common carrier by rail, engaged in the transportation of freights and passengers for hire over certain lines of railroad owed and operated by it in the States of Virginia, North Carolina and other states of the American Union; That your petitioner is the sole defendant in the above entitled suit, or civil action, which was begun against it in the Superior Court of Iredell County, North Carolina, by the issuance and service of a swamons therein, and that a complaint has been filed in said action, and that your petitioner, the defendant in said action, files this petition at and before the time of answering or demurring to said complaint has expired, That the matter in controversy in said action, whioh your petitioner desires to remove, exceeds exolusive of interest and cost the sum or value of $3,000.00; that the said suit is a civil action instituted by the plaintiff for the recovery of the sum of $30,000.00 for and on adcount of the personal injurtes alleged to have been sustained by the plaintiff on or about the 15th day of June, 1926, whioh said injuries were alleged in said complaint to have been due to ané caused by the negligence of the defendant, which said negligence is denied by your petitioner. Your petitioner further alleges that in the above mentioned civil sction there is a controversy which is wholly between citizens of different states ané which oan be fully determined as between them - to-wit: a controversy between your said petitioner, which is now also at the commencement of this action, and also on the said 15th day of June, 1926, and still is a citizen and resident of the State of Virginia, and B. S. Rucker, who, as oe petitioner avers, was at the commencement of this action and still is a citizen and resident of the State of North Carolina and of the Western District thereof and that both the said EB. S. Rucker, plaintiff in said action, and your petitioner, the defendant therein, are actually interested in said controversy and were so interested st the com mencement of this action and are still so interested in said cont rover sy. And your petitioner offers herewith a bond with good and sufficient surety in the sum of $500.00 for its entering in the District Court of the United States for the Western District of North Carolina within 30 days certified eopy of the reoord in this action and for paying all costs that may be awarded by the said District Court if said Court shall decide that this action was wrongfully or improperly removed thereto and entering special bail if such be required. : Petitioner further showeth unto the Court that the Summons in this action was returnable on the 12th day of October, 1926, and that under the statute of North Carolina it had 20 days thereafter within which to file answer and that this petition has been filed before defendant's time for filing answer or demurring in said action has expired. Petitioner further showeth to your Honor that it has given written notice of the filing of this petition and bond for the removal of this cause to the said &. 3. Rucker, plaintiff herein, prior to the filing of said petition and bond for ‘the removal thereof and files herewith a copy of said written notice of this petition and bond for the removal of this cause = given the said plaintiff prior to the filing thereof, as appears by the return of the Sheriff of Iredell County endorsed thereon. And your petitioner further prays this Court to proceed no further herein, except to make an order of removal and to accept the said surety and Bond and to cause the record herein to be removed into the District Court of Ys: the United States for the Western District of North Carolina at Statesville. SO RAILWAY COMPANY, PETITIONER, e * BY. Attorneys State of North Carolina. Gounty of Iredell. B. A. Cowan, being duly sworn, doth say that he is the looal agent of the Southern Railway Company, the petitioner, at Statesville, North Carolina; that he has fead the foregoing petition and knows the contents thereof and that the same is true except as to those matters therein stated on infor mation and belief and as to those matters he beli it to be true. Sworn to and subscribed before me this the Clerk Superior Court Iredell County North Carolina. In the Suserior Court. Iredell County. EB. 9. Rucker BOND FOR REMOVAL OF THIS CAUSE TO THS UNITZD STATIS LISTRICT COURT POR THS WSSTaRN DISTRICT OF NORTH CAROLINA, -YVsa- opm fS 2 & Southern Railway Company. Know all men by these presents - that we, the Southern Railway Company as principal and W nee Own, and Ly ka Thin Fa as sureties are held and firmly bound | unto E. 3e Ruoker in the sum of Five Hundred (8500.00) Dollars, to the payment of which sum well and truly to be made, do hereby bind ourselves, our heirs, gucoessors and assigns; the condition of this obligation is such that whereas the Southern Railway Company has filed its petition in the Superior Court df Iredell County, in the State of North Carolina, for the removal of the above entitled action vending in said Court, wherein 2. S. Rucker is plaintiff, and the Southern Railway Company is defendent, to the District Court of the United States for the Western District of North Carolina; Now, Therefore, if the Southern hailway Company, the defendant in said action and fe ations asking tie removal of the suid cause, shall enter in the said District Court of the United States within thirty (50) days from the date hereof a certified copy of the record in said action and shall well and truly pay all costs that may be awarded against it by the said District Gourt of the United States, if said Court shall adjudge that said action was wrongfully or improperly removed thereto, then this obligation shall be void, otherwise to remain in full force and effect. Witness our hands and seals, this the 2ird day of October, 1926. SOUTALEUN a BY . TY, / Attorneys is eons (SEAL) (SEAL) be a forth Varolina. Ta the Suverior Court, : Iredell county. , Be a’ Rucker 2, § os wees. feo tee ah AT Negi * EO oa Be OS, ORDER OF ReOVAL AAR 3 Southeri-Railway Company, § . - : “On the plediits, os and peabeod AragSts. i anre iy and. on the petition. ‘and ‘bona i SY filed ‘herein by, the ‘dePendant wader the provision ea the. ate of. congress. of She: ) / 3 (2, Sng United” “States, dnd on notion ot QOrior & Grigr, attdpneys for ‘bos defendant es 1 LOL? a. eRe Pe ee petitioner, Southard Radley Cow “ey, it te orietippen The pond of apie oy, Bes . A> On, 's er. ast . dairendane: ‘he @9proved an: “that tha gis Serior @ai a ee ‘fantwer ‘tthe: % & fe? a a 2 ‘ os aa ae wag i) ie ection: auc print: ‘this Action be rénoved tito the DL of * he Git 1.4 e 2 #" j EE a. ¥* ; AN bs De gy oR i” ; ‘staan far the Nestarn? istriet of ‘Moeth darolina My, Spell ie. oe ig FB. 3 ‘ LAU af { x4 > 3) % a , ‘ ®. ake ; Tuis inhi os dey: of kgel e o * Ss Pde ie; Af’, a a ty? fe ‘ , > a wy 5 P 2 : ‘ ae ts j Fe aggre.» g : . os y h : <A SRP Ray STATE OF NORTH CAROLINA OFFICE OF CORPORATION COMMISSION I, R. O. SELF, Clerk of the Corporation Commission, do hereby certify that Warren W. Woods, , having been appointed on the day of , 192.6., a Railroad Policeman for Southern Rail Way... Company in this State, has qualified as such and filed this day a copy of his appointment, his oath and bond in this office as required by Section 3485, Consolidated Statutes, and Chapter 462, Public Laws of North Carolina, 1907. In Witness WHEREOF, I have hereunto set my hand and affixed the official seal of the office. in the year of our Lord 192...6. Asst. Clerk. Clerk CO. Seog VALID WHEN COUNTERSIGNED BY ELSIE G. RIDDICK, ASSISTANT CLERK. STATE OF NORTH CAROLINA OFFICE OF CORPORATION COMMISSION , having been appointed on the i.day of July , 192.6., a Railroad Policeman for ‘ Southern Railsay................. Company in this State, has qualified as such and filed this day a copy of his appointment, his oath and bond in this office as required by Section 3485, Consolidated Statutes, and Chapter 462, Public Laws of North Carolina, 1907. In Witness WHEREOF, I have hereunto set my hand and affixed the official seal of the office. Done in office at Raleigh, the......4th.day of.......aly. in yt pe of our Lord 192.6... Cb & Godt CLO. Asst. Clerk. Clerk Corporation Co VALID WHEN COUNTERSIGNED BY ELSIE G. RIDDICK, ASSISTANT CLERK. STATE OF NORTH CAROLINA OFFICE OF CORPORATION COMMISSION James H. Ball, John %. Bradley, Sverett J. Brewer, T. Joseph 4. Payne and Roy L. Traband , having been appointed on the 6th day of October , 192.6., a Railroad Policeman for Southern in this State, has qualified as such and filed this day a copy of his appointment, his oath and bond in this office as required by Section 3485, Consolidated Statutes, and Chapter 462, Public Laws of North Carolina, 1907. In Witness WHEREOF, | have hereunto set my hand and affixed the official seal of the office. Done in office at Raleigh, the... 14th...day of......o¢to ver O- é Z in the year of our Lord 192..6.. | | Asst. Clerk. Clerk C Seu VALID WHEN COUNTERSIGNED BY ELSIE G. RIDDICK, ASSISTANT CLERK. STATE OF NORTH CAROLINA OFFICE OF CORPORATION COMMISSION 1, R. O. SELF, Clerk of the Corporation Commission, do hereby certify thet... James.L...Mullis Sra day of November Southern Rail. Way... . Company in this State, has qualified as such and filed this day a copy of his appointment, his oath and bond in this office as required by Section 3485, Consolidated Statutes, and Chapter 462, Public Laws of North Carolina, 1907. In Witness WHEREOF, I have hereunto set my hand and affixed the official seal of the office. Done in office at Raleigh, the.....5t® day of... November eat the year of our Lord 192.6... RP : Asst. Clerk. Clerk Corporation Co VALID WHEN COUNTERSIGNED BY ELSIE G. RIDDICK, ASSISTANT CLERK. State of North Caroli Gorporation @ ae WILLIAM T. LEE, GLORGE & Beers A.J. AEE: ~S ®. Oo. SELF, C. cm Raleigh November 16, 1926. Hon. Clerk Superior Court: Thig is te advise that the Gommission of NOGA mend, Ss Abiieey Police O2djeer tor tke — ‘Southern Railway System, has been cancelled by the Governor, effective November 10, 1926. ROLY K STATE OF NORTH CAROLINA OFFICE OF CORPORATION COMMISSION Southern Rail "28Y Company in this State, has qualified as such and filed this day a copy of his appointment, his oath and bond in this office as required by Section 3485, Consolidated Statutes, and Chapter 462, Public Laws of North Carolina, 1907. | In Wrrness WHEREOF, | have hereunto set my hand and affixed | the official seal of the office. in the year of our Lord 192°... BO har Asst. Clerk. Clerk Corporation Commission. BY ELSIE G. RIDDICK, ASSISTANT CLERK. State of Morth Carolina Corporation Commission WILLIAM T. Leg GEORGE P. PELL A. J. MAXWELL CHAIRMAN COMMISSIONER COMMISSIONER R. ©. SELF, CiaRrx ELSIE G. RIDDICK ASSISTANT CLERK Baleigh Hon. Clerk Superior Court: Jane 16, 1927. This is to advise that, on aceount of renoval from the State, the commissions of the following mamed Police Officers for the Southern Railway Compeny in the State of North Carolina have been canselied, effective June 6th: We Be Thomas, W, GO. Rosser, Pred Jonee, We G Marley, Asheville, Asheville, Asheville, Winston-Salem. LOLS Clerk. Ke STATE OF NORTH CAROLINA OFFICE OF CORPORATION COMMISSION 1, R. O. SELF, Clerk of the Corporation Commission, do hereby certify that Henry E. Jenkins , having been appointed on the 25th day of July , 192.%., a Railroad Policeman for Southern Rail 427 Company in this State, has qualified as such and filed this day a copy of his appointment, his oath and bond in this office as required by Section 3485, Consolidated Statutes, and Chapter 462, Public Laws of North Carolina, 1907. In Witness WHEREOF, | have hereunto set my hand and affixed the official seal of the office. Done in office at Raleigh, the..29*h day of July be ap the year of our Lord 192... ) 0 Asst. Clerk. Clerk Corporation Co YALID WHEN COUNTERSIGNED BY ELSIE G. RIDDICK, ASSISTANT CLERK. . NORTH CAROLINA THE SUPERIOR COURT IREDELL COUNTY Le C. ATWELL vs. SOUTHERN RAILWAY COMPANY. This cause coming on to be heard te fore the undersigned Clerk of the Superior Court of Iredell County, and it appearing that all the matters in con- troversy involved in this action have been agrged upon, compromised and settled between the parties, and that the amount agreed upon to be paid by the defendant to the plaintiff has been paid in full; it is, therefore, by consent of both the plaintiff and defendant ORDERED AND ADJUDGED that this action be dismissed, that the . defendant go without day upon payment of the costs of the action to be taxed by the Clerk. This 8 day of February, 1928. Jit MOiL ZA Le Clerk 6f the Superior Court of Iredell County. The above judgment is appnoved. WY, ; Ti hy ii Attorneys for plaintiff DEPARTMENT OF > CULTURAL RESOURCES DIVISION OF ARCHIVES AND RECORDS CERTIFICATE OF AUTHENTICITY This is to certify that the micrographics appearing on this film are true and accurate reproductions of records originated during the normal course of business by the . Iredell County _ and consist of Railroad Records 1860-1928 The records begin with _C.Qosy fas. 3 LOY and end with_( 2 Og4. 935.7 SGA It is further certified that the above records were microfilmed in conformity with the provisions of the General Statutes of North Carolina, chapter 8-45.1 and 8-45.4, "Uniform Photographic Copies of Business and Public Records as Evidence Act”; that the microphotography processes accurately reproduce the records so microfilmed; that the film forms a durable medium for reproducing the original, if necessary; and that the film used conforms to American National Standards Institute, Photographic Films-Specifications for Safety Film, ANSI IT9.6-1996 and American National Standards Institute, Imaging Media (Film)-Silver Gelatin Type-Specifications for Stability, ANSI / NAPM IT9.1-1996. This is further to certify that the microphotography processes were accomplished by the undersigned on the date and at the reduction ratio indicated below. Date filming of this reel began /- _9- 74y Reduction Ratio VATIOUS Date filming of this reel ended /~ 7 0- a MD bliss Doubdtatan Microfilm Camera Operator