{
  "id": 11270011,
  "name": "LIZZIE IVES et al. v. CHARLES GRING",
  "name_abbreviation": "Ives v. Gring",
  "decision_date": "1909-02-17",
  "docket_number": "",
  "first_page": "137",
  "last_page": "139",
  "citations": [
    {
      "type": "official",
      "cite": "150 N.C. 137"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
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    "char_count": 5151,
    "ocr_confidence": 0.467,
    "sha256": "fb377bfa3503219123f57c4a1587d8cd6e22884f2ddf1026e235c63bd4e888dc",
    "simhash": "1:4c72b02483f9a418",
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  "last_updated": "2023-07-14T18:55:20.077008+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "LIZZIE IVES et al. v. CHARLES GRING."
    ],
    "opinions": [
      {
        "text": "Clark, C. J.\nTliis is an action for damages to tbe marine railway of plaintiffs by the tugboat of the defendant. The evidence is that the tugboat, which was bound down the river, instead of following the usual course, ran diagonally towards the shore, and, striking the marine railway of plaintiffs, damaged it. The captain of the tugboat testified that he knew the locality well, having passed it more than two hundred times. After the injury he offered to j>ay damages, but the parties could not agree upon the amount. It was a bright moonlight night, and there was also a bonfire on shore and a line of electric lights, which lighted up the harbor. There were 540 feet between the end of the marine railway and the buoy on the opposite side, in which space the tugboat should have passed.\nThe court properly refused to charge that, upon the evidence, the plaintiffs were not entitled to recov\u00e9r, and to answer the first issue \u201cNo.\u201d Whether there was a harbor line or not, the marine railway was a necessity .for the repair of vessels. It was not shown to be located there illegally, or that it was a public nuisance; and if it had been, the tugboat was not authorized to run into it unnecessarily and negligently, as the evidence tended to show. The marine railway had been at that place eighteen years, and the cajffain of the tugboat had been by it, he says, more than two hundred times.\nThe court also properly refused to charge that as a matter of law the plaintiff was guilty of contributory negligence. The burden was upon the defendant to set this up and \u201cprove it on the trial.\u201d Revisal, sec. 483.' There was evidence tending-strongly to show that the cause of the injury was the negligence of -the defendant. The court properly refused the prayer to instruct the jury that the proximate cause of the injury was the contributory negligence of the plaintiff.\nIf it were negligence for the plaintiff to leave the cradle under water on the railway at night, this did not cause the injury. Clearly the proximate. cause was the negligence of the \u2022tugboat in not proceeding on its course in a channel 540 feet wide, but going several hundred feet out of its way and driving-in shore against the marine railway.\nThe court properly charged that if the plaintiff did not have a light on its marine railway, and such failure was the proximate cause, to find the plaintiff guilty of contributory negligence. The court also properly refused to charge that if the marine railway extended beyond the harbor line this was the proximate cause, but left the inquiry as to the proximate cause to the jury.\nUpon the evidence the jury could hardly have found otherwise than that the proximate cause of the injury was the negligent handling of the tugboat and its going two hundred feet or more out of its course and outside of the regular channel.\nNo Error.",
        "type": "majority",
        "author": "Clark, C. J."
      }
    ],
    "attorneys": [
      "Aydlett & Ehringhaus for plaintiff.",
      "J. Heywood Sawyer for defendant."
    ],
    "corrections": "",
    "head_matter": "LIZZIE IVES et al. v. CHARLES GRING.\n(Filed 17 February, 1909.)\n1. Negligence \u2014 Evidence\u2014Nonsuit\u2014Marine Railway.\nIn an action for damages to plaintiff\u2019s marine railway, lawfully placed, by defendant\u2019s tugboat running into it at nigbt, an instruction that plaintiff could not recover is properly refused when the evidence tended to show that the captain of the tugboat was fully aware of the location of the railway, could have seen' it by the moonlight and lights in the harbor, and had deviated from a channel known to him and which would have afforded ample room for his boat to pass without injury.\n2. Same \u2014 Nuisance.\nThe captain of a tugboat is not authorized to run into a marine railway unnecessarily and negligently, though the railway was illegally placed and constructed and was a public nuisance.\n3. Burden of Proof \u2014 Contributory Negligence \u2014 Proximate Cause\u2014 instructions \u2014 Questions for Jury.\nThe burden of proof is on defendant to show contributory negligence, and when there is evidence tending to show that negligence on defendant\u2019s part caused the injury the court cannot fix, as a matter of law, contributory negligence or proximate cause upon plaintiff.\n4. Negligence \u2014 Causal Connection \u2014 Instructions.\nA prayer for instruction, based upon plaintiff\u2019s negligent act, which did not cause the injury complained of, is properly refused.\n5. Negligence \u2014 Light\u2014Marine Railway \u2014 Proximate Cause \u2014 Contributory Negligence \u2014 Instructions.\nIn an action for damages to plaintiff\u2019s marine railway, caused by defendant\u2019s tugboat running into it at night, a charge was correct, when there was evid\u00e9nce to support it, that if plaintiff did not have a light on its marine railway, and such failure was the proximate cause -of .the injury, to find the plaintiff guilty' of contributory negligence.\n6. Negligence \u2014 Marine Railway \u2014 Construction\u2014Proximate Cause\u2014 Harbor Line \u2014 Questions for Jury.\nIn an action for damages to plaintiff\u2019s marine railway, caused by defendant\u2019s tugboat running into it at night, the question of proximate cause arising from the extension of the railway beyond the harbor line was one for the jury.\nActioN tried before Webb, J., and a jury, at September Term, 1908, of Pasquotank.\nDefendant appealed.\nAydlett & Ehringhaus for plaintiff.\nJ. Heywood Sawyer for defendant."
  },
  "file_name": "0137-01",
  "first_page_order": 181,
  "last_page_order": 183
}