{
  "id": 8663384,
  "name": "DORA E. BENTON, Administratrix of T. C. Benton, v. THE NORTH CAROLINA RAILROAD COMPANY",
  "name_abbreviation": "Benton v. North Carolina Railroad",
  "decision_date": "1898-05-24",
  "docket_number": "",
  "first_page": "1007",
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  "last_updated": "2023-07-14T18:06:10.161321+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [],
    "parties": [
      "DORA E. BENTON, Administratrix of T. C. Benton, v. THE NORTH CAROLINA RAILROAD COMPANY."
    ],
    "opinions": [
      {
        "text": "Clark, J.:\nAll the exceptions have been recently passed upon in the decisions of this Court, and it is only necessary to refer to them.\n1. The refusal of the Judge to remove is not reviewable. The present statute forbids the Judge to remove a cause \u2018 \u2018unless he shall be satisfied that the ends of justice demand it,\u201d and when he is not so satisfied by the affidavits offered it is immaterial that counter affidavits are not presented. State v. Smart, 121 N. C., 669; The Code, Sections 196, 197.\n2. The court charged the jury as follows: \u201cThe measure of damages for loss of life of plaintiff\u2019s intestate is the present value of his net income, and this is to be ascertained by deducting the cost of living and expenditure from his net gross income and then estimating the present value of the accumulation from such net income, based upon his expectation of life.\n\u2018 \u2018In applying this rule to the facts in this case, and to enable the jury to properly estimate the reasonable expectation of pecuniary advantage from the continuance of the fife of the deceased, they should consider his age, habits, industry, means, business qualifications, skill and his reasonable expectation of life. \u201d\nThese instructions follow the precedents in this Court. Pickett v. R. R. Co., 117 N. C., 616 (at page 638); Burton v. R. R. Co., 82 N. C., 504; Kesler v. Smith, 66 N. C., 154.\n3. The defendant moved for judgment against the plaintiff upon the pleadings and proof \u201cfor that the pleadings showed that the injury resulting in the death, of the plaintiff\u2019s intestate was due to the negligence of the lessee of the defendant in the operation of the road of the defendant.\u201d The liability of the lessor company in such cases, decided Aycock v. R. R. Co., 89 N. C., 321, has been re-affirmed in the late cases of Logan v. R. R. Co., 116 N. C., 940; Tillett v. R. R. Co., 118 N. C., 1031; Norton v. R. R. Co., at this term.\n4. The motion to set aside the verdict because \u2018 \u2018excessive and not warranted by the evidence\u201d rested in the discretion of the trial Judge and his discretion is not reviewable. Norton v. R. R. Co., supra; Edwards v. Phifer, 120 N. C., 405 and cases there cited; State v. Kiger, 115 N. C., 746; Ferrell v. Thompson, 107 N. C., 421; Whitehurst v. Pettipher, 105 N. C., 40; Goodson v. Mullen, 92 N. C., 211; Brown v. Morris, 20 N. C., 429; Long v. Gautley, Id. 313; Young v. Hairston, 14 N. C., 55.\nNo error.",
        "type": "majority",
        "author": "Clark, J.:"
      }
    ],
    "attorneys": [
      "Messrs. Jones & Tillett, Covington & Redwine and Frank I. Osborne for'plaintiff.",
      "Mr. Geo~~F. Bason for defendant (appellant)."
    ],
    "corrections": "",
    "head_matter": "DORA E. BENTON, Administratrix of T. C. Benton, v. THE NORTH CAROLINA RAILROAD COMPANY.\n(Decided May 24, 1898).\nAction for Damages \u2014 Venue\u2014Refusal to Remove Action to Another County \u2014 Appeal\u2014Measure of Damages\u25a0\u2014 Railroads \u2014 Lessor Railroad Liable for Negligent Acts of Lessee \u2014 Negligence\u2014Excessive Verdict.\n1. It not being the duty of a judge (under Sections 196,197, of The Code) to remove a cause from one Court to another \u201cunless he should be satisfied that the ends of justice demand it,\u201d his refusal to so remove is not reviewable on appeal, when he is not satisfied byi the affidavits filed, that it is his duty to remove, and the fact that no counter affidavits are presented is immaterial.\n2. In the trial of an action for damages for the wrongful killing of plaintiff\u2019s intestate it was proper to instruct the jury on the issue as to the amount of damages that the measure of damages for the loss of life is the present value of the net income of the deceased to be ascertained by deducting the cost of living and expenditures from his gross income and then estimating the present value of the accumulation from such net income based uxion his expectation of life, and in making such estimate the jury should consider the age, habits, industry, means, business qualifications and skill of the deceased and his reasonable expectation of life.\n3. A lessor railroad company is liable for the negligent acts of its lessee in operating the leased property.\n4. A motion to set aside a verdict in an action for damages on the ground that the award is excessive, and not warranted by the evidence, is addressed to the discretion of the trial judge and the exercise of such discretion is not reviewable.\nCivil ACTION for damages for the alleged negligent killing of plaintiff\u2019s intestate by the Southern Railway Company, the lessee of the defendant railroad company, tried before G-reene, J., and a jury at January Term, 1898, of MeckleNburg Superior Court. The defendant filed affidavits in support of a motion to remove the trial of the action to another county on account of local prejudice. No counter affidavits were filed. The motion was refused and defendant excepted. The deceased was a postal route agent and was killed by the collision of trains operated by the defendant\u2019s lessee. There was'a verdict for $12,000 for the plaintiff and defendant appealed from the judgment thereon.\nMessrs. Jones & Tillett, Covington & Redwine and Frank I. Osborne for'plaintiff.\nMr. Geo~~F. Bason for defendant (appellant)."
  },
  "file_name": "1007-01",
  "first_page_order": 1039,
  "last_page_order": 1042
}