{
  "id": 11272162,
  "name": "J. A. DAVIDSON v. SOUTHERN RAILWAY COMPANY",
  "name_abbreviation": "Davidson v. Southern Railway Co.",
  "decision_date": "1911-11-15",
  "docket_number": "",
  "first_page": "578",
  "last_page": "581",
  "citations": [
    {
      "type": "official",
      "cite": "156 N.C. 578"
    }
  ],
  "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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    "ocr_confidence": 0.436,
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    "simhash": "1:cc7e0b97a7dc920f",
    "word_count": 1042
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  "last_updated": "2023-07-14T17:09:22.906707+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "J. A. DAVIDSON v. SOUTHERN RAILWAY COMPANY."
    ],
    "opinions": [
      {
        "text": "BbowN, J,\nThe evidence for plaintiff tends to prove that his driver, Arthur Johnson, approached defendant\u2019s tracks at Statesville with a view to crossing; that the watchman signaled Mm to cross, and as be was driving across, tbe yardmaster bit tbe mules in tbe face and tried to stop tbem, and tbat in consequence tbey were injured by a train. Plaintiff contends tbat if tbe yardmaster bad not interfered, bis team would bave safely crossed.\nTbe defendant\u2019s evidence tends to prove tbat tbe watchman signaled tbe driver to stop before be started across tbe tracks; tbat be did not beed tbe signal; tbat when tbe yardmaster attempted to-stop and turn tbe mules, tbe driver whipped tbem up, in consequence of which tbe approaching train ran. into tbem.\nIt is contended tbat bis Honor should bave submitted an issue as to tbe last clear chance. Upon tbe evidence in tMs case and tbe contentions of tbe parties, we do not think tbe issue is raised. If it was, however, tbe plaintiffs failed to tender tbe issue and except to those submitted.\nTbe plaintiff excepted to tbe charge of tbe court upon tbe second issue, which is as follows: \u201cNow, tbe defendant contends tbat if you should find tbat tbe defendant was negligent, if you should find tbat it signed, or invited tbe plaintiff\u2019s driver, Johnson, to come on with tbe wagon and team, tbat still plaintiff\u2019s servant was guilty of contributory negligence; when be was on tbe main track, when tbey tried to stop him \u2014 tbe evidence, you will remember, tends to show tbat tbe plaintiff Johnson was on tbe middle track, tbe main track; tbat Garrison jumped off tbe car and ran and bit tbe mules in tbe face with bis bat, caught bold of one of tbem, and tbe flagman ran around with bis flag trying to flag tbem down; tbe evidence tends to show tbat tbe driver of plaintiff\u2019s team put whip to tbem and forced tbem on. If you find tbat to be a fact, notwithstanding the negligence of tbe defendant, if you find tbat the defendant was negligent; if you further find tbat, notwithstanding tbe defendant\u2019s negligence, tbe plaintiff could bave avoided tbe injury by assisting tbe flagman and Garrison to stop tbe mules and not whip tbem, and if you find that bis putting whip to tbe mules and not trying to stop is tbe proximate caus\u00e9, tbe burden being on tbe defendant to show by tbe greater weight of the evidence, it would be your duty to answer the second issue \u2018Yes.\u2019 If you do not so find that it was the negligence on the part of Johnson, the driver, why you would answer the second issue Yes.\u2019 \u201d\nIt may be that his Honor inadvertently used the word \u201cYes\u201d at close of the above paragraph, and intended to use the word \u201cNo.\u201d But we are bound by the record.\nIf the evidence offered by the defendant is believed, the driver Johnson was guilty' of very gross negligence which directly caused the injury and would bar a recovery; but this evidence was controverted by plaintiff.\nThe instruction of the court, as appearing in the record, was tantamount to directing a verdict. He charged, substantially: \u201cIf you do not find that Johnson was guilty of negligence, you will answer second issue Yes.\u2019 \u201d This is manifest error and entitles plaintiff to another trial. We doubt not that the record is erroneous, or else that it was a lapsus lingua upon the part of the careful and painstaking judge; but it appears so in the record, and we are' bound by it. It is our duty to state that the ease on appeal was agreed to by counsel and not submitted to the judge.\nNew trial.",
        "type": "majority",
        "author": "BbowN, J,"
      }
    ],
    "attorneys": [
      "H. P. Grier, Z. V. Long for 'plaintiffs.",
      "L. G. Caldwell for defendant."
    ],
    "corrections": "",
    "head_matter": "J. A. DAVIDSON v. SOUTHERN RAILWAY COMPANY.\n(Filed 15 November, 1911.)\n1. Railroads \u2014 Crossings\u2014Issues\u2014Negligence\u2014\u201cLast Clear Chance\u201d \u2014Evidence.\nIn an action for damages to plaintiff\u2019s team while endeavoring to cross defendant railroad company\u2019s track at a public crossing, no issue as to the last clear chance is raised on evidence tending to show, on plaintiff\u2019s part, that at a signal from defendant\u2019s watchman he was endeavoring to and would have crossed safely except for the act of defendant\u2019s yardmaster in slapping his mules in the face, causing them to run into a passing train; and on defendant\u2019s part, that the watchman signaled the. plaintiff\u2019s driver to stop, and that the injury was caused by his not having done so and by whipping- up his team when the yardmaster was endeavoring to prevent his crossing at the time.\n2. Issues \u2014 \u201cLast Clear Chance\u201d \u2014 Objections and Exceptions \u2014 Issues Submitted \u2014 Issues Requested.\nWhen the complaining party has not submitted an issue, or excepted to the issues tendered, he cannot successlully appeal for the failure or refusal of the judge to submit the issue.\n3. Railroads \u2014 Crossings\u2014Contributory Negligence \u2014 Instructions\u2014 Evidence \u2014 Intimation of Court.\nIn an action for damages for injury to plaintiff\u2019s mules and wagon at a railroad crossing in a collision with the passing train of defendant railroad company, under conflicting evidence as to whether the proximate cause was the negligence of the defendant's employees or the negligence of the plaintiff\u2019s driver in whipping up the mules when the employees were endeavoring to keep them from crossing the track, it is reversible error appearing of record for the trial judge to instruct the jury that they should answer the issue as to contributory negligence in the affirmative, should -they find that plaintiff\u2019s driver, by assisting the defendant\u2019s employees to stop the mules, could have avoided the injury complained of; and if they do not so find, they will answer this issue \u201cYes.\u201d\nAppeal from Lyon, J., at May Term, 1911, of Ibedell.\nThese issues were submitted without objection:\n1. Were plaintiff\u2019s mules and wagon injured by the negligence of the defendant, as alleged in the complaint ? Answer: Yes.\n2. Were the mules and wagon injured by the contributory negligence of the plaintiff\u2019s driver, as alleged in the answer? Answer: Yes.\n3. What damage, if any, is the plaintiff entitled to recover? Answer: .\nThe court rendered judgment for defendant, and plaintiff appealed.\nH. P. Grier, Z. V. Long for 'plaintiffs.\nL. G. Caldwell for defendant."
  },
  "file_name": "0578-01",
  "first_page_order": 618,
  "last_page_order": 621
}