{ "id": 8653375, "name": "M. F. McRAE v. MAXTON, ALMA AND SOUTHBOUND RAILROAD COMPANY", "name_abbreviation": "McRae v. Maxton, Alma & Southbound Railroad", "decision_date": "1920-10-20", "docket_number": "", "first_page": "223", "last_page": "224", "citations": [ { "type": "official", "cite": "180 N.C. 223" } ], "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": { "cardinality": 258, "char_count": 4498, "ocr_confidence": 0.43, "sha256": "83258c671b456a260f69e124e007d5877a52ef20a0c75c7a47065506733cab55", "simhash": "1:849c145ec056c3c5", "word_count": 773 }, "last_updated": "2023-07-14T14:30:08.757715+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "M. F. McRAE v. MAXTON, ALMA AND SOUTHBOUND RAILROAD COMPANY." ], "opinions": [ { "text": "Clabk, O. J.\nTbe complaint averred tbat \u201cabout 50 acres\u201d of plaintiff\u2019s land was burnt over as tbe consequence of sparks negligently emitted from tbe defendant\u2019s engines. Tbis was squarely denied by tbe answer. Tbe only evidence as to the acreage burnt over is that of tbe court surveyor, wbo testified tbat be \u201csurveyed burnt lands for plaintiff about tbe middle of March and made tbis map introduced as exbibit \u2018A,\u2019 showing plaintiff\u2019s claim, for 42.2 acres burned, . . . went over burnt area as indicated on map, pointed out by M. E. McRae.\u201d Tbe only other testimony as to tbe acreage burnt is that of A. D. McRae, brother of tbe plaintiff, wbo testified \u201cabout 40 acres burnt over.\u201d\nThere was no issue submitted as to tbe acreage burnt over. To tbe issue, \u201cWhat damage, if any, is tbe plaintiff entitled to recover from tbe defendant?\u201d the jury responded, \u201c$12.50 per acre.\u201d\nHad tbe jury responded in a lump sum, it would have been conclusively presumed tbat they ascertained tbe number of acres in fixing tbe damage. Tbe number of acres was not admitted, nor was it found by tbe jury, and it was error to enter judgment upon the indefinite verdict.\nTbe surveyor, whose survey was made several months after tbe fire, testified tbat bis map, which was introduced in evidence, showed \u201cplaintiff\u2019s claim 42.2 acres burned,\u201d and added, \u201cthat the burnt area was XDointed out to him by M. E. McRae\u201d (tbe plaintiff). Tbis was incompetent because M. E. McRae bad not testified as to tbe area burnt over, and was not even corroborative evidence. It was merely tbe hearsay statement of tbe plaintiff and tbe map was simply a statement of tbe plaintiff\u2019s claim as to tbe acreage. It was error for tbe judge to take tbat unproven acreage and multiply it by tbe jury\u2019s finding of $12.50 per acre and enter a verdict for $527.50. .The jury did not even find tbe \u201cabout 40 acres\u201d estimate of A. D. McRae to be correct, and whether the judge could have given judgment for tbe recovery of $500 is not before us, for be did not enter such judgment, and there was no motion by tbe plaintiff that be should do so.\nTbe plaintiff insists that tbe second issue finds tbat \u201cthe plaintiff\u2019s property was burned by tbe negligence of tbe defendant, as alleged in the complaint.\u201d But that issue is only as to tbe negligent burning; as tbe first issue is to tbe ownership of tbe property. Neither of them throw any light upon the acreage burnt over, which was not a fact that could be found by tbe judge.\nThere are several other exceptions, in view of which, without discussing them (as they may not arise again), tbe case should be sent back without being restricted to tbe issue of damages, for a\n'New trial.", "type": "majority", "author": "Clabk, O. J." } ], "attorneys": [ "McNeil & Haclcett'and Junius J. Goodwin for plaintiff.", "Henry A. McKinnon and McLean, Varser, McLean & Stacy for \u25a0\u25a0defendant." ], "corrections": "", "head_matter": "M. F. McRAE v. MAXTON, ALMA AND SOUTHBOUND RAILROAD COMPANY.\n(Filed 20 October, 1920.)\n1. Evidence \u2014 Hearsay\u2014Fires\u2014Damages.\nA map made by a surveyor showing the number of acres as \u201cclaimed\u201d by the plaintiff to have been burnt over and damaged by fire from defendant railroad company\u2019s locomotivfe in an action to recover damages for the negligence of the defendant therein, is hearsay and incompetent as substantive evidence, and a judgment based thereon and calculated by the judge on a verdict of so much damage per acre, the acreage riot being found by the verdict,, is reversible error.\n\u2018Ss. .Appeal and Error \u2014 Judgments\u2014Fires\u2014Damages\u2014Evidence.\nWhen the trial judge has erroneously calculated the fire damage to plaintiff\u2019s land by multiplying the damage per acre, found by the verdict, the number of acres not being admitted nor found by the verdict, the \u25a0question as to whether the judgment should have been based upon other \u25a0evidence of a different acreage, without motion therefor, is not presented \u25a0on appeal.\n\u2022S. Negligence \u2014 Issues\u2014Pleadings\u2014Evidence\u2014Fires\u2014Damages.\nAn answer to an issue, was \u201cthe plaintiff\u2019s land burned over by the negligence of the defendant, as alleged in the complaint?\u201d refers to the negligence alleged and not to the number of acres of the plaintiff that were damaged. \u25a0\nAppeal by tbe defendant from Gui\u00f3n, J., at September Term, 1920,