{
  "id": 11274806,
  "name": "WILLIAM AVERA Jr., vs. WILLIAM SEXTON",
  "name_abbreviation": "Avera v. Sexton",
  "decision_date": "1852-06",
  "docket_number": "",
  "first_page": "247",
  "last_page": "253",
  "citations": [
    {
      "type": "nominative",
      "cite": "13 Ired. 247"
    },
    {
      "type": "official",
      "cite": "35 N.C. 247"
    }
  ],
  "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": 491,
    "char_count": 10897,
    "ocr_confidence": 0.474,
    "pagerank": {
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      "percentile": 0.6412721359430608
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    "sha256": "ede16730c6e91b8e105cd67a944b53acb3d8610345ff72234dc4013e0299b117",
    "simhash": "1:e34821f7027257cf",
    "word_count": 1964
  },
  "last_updated": "2023-07-14T16:11:31.390339+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "WILLIAM AVERA Jr., vs. WILLIAM SEXTON."
    ],
    "opinions": [
      {
        "text": "Pearson. J.\nThe plaintiff\u2019s counsel prayed his Honor to instruct the jury, that, upon the whole case, if they believed the testimony, there was negligence on the part of the defendant. This instruction was refused; and for this the plaintiff excepts.\nThe terms used by the plaintiff are so general as to impose on him the disadvantage of having all the testimony, where it conflicts, taken against him. But even with this allowance, there was negligence on the part of the defendant.\nThe plaintiff\u2019s unfinished raft\u2019 was fastened at a usual landing place, where rafts were sometimes constructed, and descending rafts were frequently taken up. It could be seen by the hands on a descending raft at the distance of seventy-five or eighty yards; and they could without difficulty avoid a collision, if it was seen at any time before coming within fifty yards. The defendant, without looking to see, whether the landing was pre-occupied, as there was reason to suppose it might be, approached so near, that when the plaintiff\u2019s raft was seen, it was too late, and the collision was inevitable. These are the facts. They establish negligence, and fix the defendant with a liability to make compensation for the damage.\nCommon prudence requires, and, in fact, it would seem to be a natural impulse, that one, on a descending raft, before deciding to \u201c take up\u201d at a usual landing place, should look and see whether it was pre-occupied, as soon as he came to a position, from whence the fact could be ascertained-, and, at all events, before coming so near, that seeing could do no good, and the consequences be the same, as if he had not looked at all, but, having decided to \u201c take up\u201d at that place, approached blindly and without regard to the damage he might cause to others.\nIf the plaintiff\u2019s raft had been in a position, from which it could not be seen in full time to avoid a collision, it might have been his duty to keep a hand there or fix up a signal in order to give notice; but such was not the case, and the entire fault was on the part of the defendant,\nWhat amounts to negligence, is a question of law. This is settled by numerous cases. And the plaintiff was enticed to special instructions upon certain facts presented by the testimony, or \u201c upon the whole case,\u201d if he chose to subject himself to the disadvantage above pointed out. Consequently, it is error to refuse such special instructionsf when prayed for, and to submit the matter to the jury \u201c broad cast,\u201d with the genera] instruction, that \u201c the plaintiff was entitled to recover, if the defendant did not use such care, as an ordinary prudent man would use in the management of his own affairs.\u201d\nPer Curiam. ' Venire dc novo awarded.",
        "type": "majority",
        "author": "Pearson. J."
      }
    ],
    "attorneys": [
      "IF. Whisloio, for the plaintiff\u2019.",
      "Strange, for the defendant."
    ],
    "corrections": "",
    "head_matter": "WILLIAM AVERA Jr., vs. WILLIAM SEXTON.\nWhat amounts to negligence is a question of law. And the plaintiff is entitled to special instructions upon certain facts presented by the testimony, or \u201cupon the whole case,\u201d if he choose to subject himself to the disadvantage of having all the conflicting'taken against him.\nIt is error to refuse such special instructions, when called for, and to submit the matter to the jury, with general instructions merely.\nAppeal from the Superior Court of Law of Cumberland County, at the Special Term, February 1852, his Honor Judge Settle presiding.\n\u25a0 This is an action on the case to recover damages from tiie defendant, for negligence in managing and steering his raft in the Cape Fear River, by which an unfinished raft of the plaintiff was broken from its fastenings, and the timber lost.\nThe plaintiff called as a witness, James Colvill, who swore, that he was employed by the plaintiff to watch a raft of timber, which he was making in the river, and guard it from the dangers of a freshet. The witness stated, that the clamp or unfinished raft was tied to a tree on the shore by an inch rope. In consequence of a high freshet \u2014 a rise of twenty feet of water, which came very suddenly in the river, he went to the landing on the morning of the day the clamp was broken, and securely fastened the same by an inch rope to a tree higher up the bank. At a late hour of the day he went again to the river, and found the plaintiff\u2019s timber gone, and saw upon the tree, where the rope had been tied, the mark made by the rope, as if it had been violently strained. The witness farther stated, that the clamp was in a cove, made by a bend in the river; was at a public rafting and landing place, a place where raftsmen coming over the falls, or rapids, were accustomed to stop for the purpose of discharging the extra hands, necessary to bring the raft over the falls. He further said, that there were twenty-four sticks of timber in the plaintiff\u2019s clamp.\nThe plaintiff next examined Kedar Kennedy, who swore, that he came over the falls on the day the plaintiff\u2019s timber was lost, and tried to \u201ctake up\u201d his raft at the \u201cupper landing,\u201d next to the falls \u2014 failing in this, he followed the current until he came within eighty or a hundred yards of the \u2018\u2018cove,\u201d when seeing a clamp or raft of timber at the place described by the first witness, he ordered his hands to \u201cpull out,\u201d and not to strike it. He then ran with the current about two miles, until he came into \u201c eddy water,\u201d ' and took up his raft. He stated, that he could .see the. plaintiff\u2019s raft at the distance of eighty yards, and could easily avail striking against it, after seeing it at that distance. He further stated, that the current of the river set in a direction off from the plaintiff\u2019s timber, and was sufficiently strong to carry off a raft, if no effort had been made to draw it into the shore.\nThomas Bolin was next introduced, who swore, that he was on the defendant\u2019s raft the day that the plaintiff\u2019s clamp was broken; said, that the clamp might have been seen at the distance of seventy-five yards, but was not seen at that . distance; that he was standing upon the raft near the front, not employed at the time; that most of the hands were working to get the raft in near the shore for the purpose of \u201c taking up that so soon as the alarm was given about the clamp ahead, the hands commenced working the fore-oar for the purpose of throwing the head of the raft out into the main stream,s\u00a9 as not to \u201cbutt\u201d the plaintiff\u2019s timber; that the front of the raft being thrown suddenly out caused the stern to wheel in, which \u201c dragged\u2019\u2019 or \u201c rubbed\u201d the plaintiffs timber, and caused the clamp to be broken, and the pieces scattered in the current. Witness further said, he thought all was not done that might have been done to prevent the injury to the plaintiff.\nThe plaintiff gave evidence of the value of his timber and closed his case,\nThe defendant, to support his plea of \u201c not guilty,\u201d examined, first, James McAllister, who swore, that he had been many years acquainted with rafting and \u201c navigating\u201d the falls; that on this occasion he went on the defendant\u2019s raft at his request, and assisted the hands in going over the falls; that there were ten or twelve hands on the raft, more than the number usually employed in the highest fr.eshet; that they were safely over the falls, and drew in towards the shore, trying to take up; and were trying for a half a mile \u2014 \u00bbthrowing out their ropes around trees and catching the limbs; that when the alarm was given about the timber ahead at the landing, the main force was applied to the fore oar to throw the head of the raft out into the stream and to avoid a collision with the plaintiffs clamp; th'at a part of the hands were also working at the \u201chind oar\u201d to prevent its dragging or rubbing; but as soon as the front of the raft passed by the plaintiff\u2019s without striking, an effort was made by the hands to throw out the stern towards the current, so as to prevent striking either with the side or end of the defendant\u2019s raft, but they failed in this, and the clamp was broken loose by the hind end of the raft. He further swore, that the force of the hands was sufficient; that some of them were trained and experienced in the management of ralts, and that all was done that could be done, after seeing plaintiff\u2019s timber, to prevent its loss. Says, that he was within fifty yards of the clamp, when he discovered it; that he might have passed by it safely had he seen it a distance of seventy-five yards, or even fifty yards: no hand is ever employed on the river merely as a \u201clook out.\u201d He further swore, that the force of the hands was properly directed; and that not only was the proper effort made, but, in his opinion, the whole management of the raft was skillfully conducted. He further swore, that he was looked up to as the manager of the defendant\u2019s raft; that at the time of the \u201c alarm,\u201d he ordered all hands to the fore oar, which he admitted to be wrong in ordering all hands. He further said, that negro Frank, an experienced hand, remained at his post at the hind oar, notwithstanding the order.\nHngh McLean swore for the defendant. Was also upon the raft. Swore in all material points substantially as the witness McAllister. He said, that when the plaintiff\u2019s clamp was discovered, he and several others were clinging to the limbs and bushes, trying to take up the raft of the defendant; and that as soon as the clamp was seen, they immediately made all the efforts in their power to prevent injury. He further swore, that there was no look out on the raft \u2014 that he never heard of a \u201clook out\u201d on the Cape Fear: that the plaintiff\u2019s raft might have been seen by a look out.\nJulius McLean, witness for defendant, was also on the defendant\u2019s raft. Swore in all material matters as the other witnesses for the defendant. He said, that Bolin, McAllister\u00bb McLean, defendant, and himself, were the only white persons present on the defendant\u2019s raft.\nHis Honor charged the jury, that the defendant, being in the prosecution of a lawful employment, was only bound to use ordinary care \u2014 such care as an ordinary prudent man would use in the management of his own affairs. And if, in this matter, he did not use such care, the plaintiff was entitled to the verdict.\nThe plaintiff\u2019s counsel then requested the Court to charge the jury, that if the defendant, when attempting to \u201c take up,\u201d saw the raft of the plaintiff, or might by a careful look out have seen it, it was his duty in taking up to have taken effectual efforts to have prevented a collision,\nIlis Honor would not so instruct the jury, but remarked, that the defendant was only bound to use ordinary care ; and what that was, he had already explained.\nThe plaintiff\u2019s counsel then prayed the Court to instruct the jury, that, upon the whole case, if they believed the testimony, there wras negligence on the part of the defendant; but the Court declined so to instruct the jury, and repeated the instructions as to ordinary care.\nVerdict for defendant, and plaintiff appealed.\nIF. Whisloio, for the plaintiff\u2019.\nStrange, for the defendant."
  },
  "file_name": "0247-01",
  "first_page_order": 253,
  "last_page_order": 259
}