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if guilty of such negligence, could the defendant have avoided the injury by the exercise of ordinary care?"

It was necessary for a recovery by the plaintiff that the first issue as to the negligence of the defendant should have been found in his favor, as there can be no recovery unless the injury is the result of some negligence on the part of the defendant. When such primary negligence is found, the next inquiry is as to the contributory negligence of the plaintiff. If he has not been guilty of such negligence, then he is at once entitled to the issue of damages. If he has been guilty of contributory negligence and yet the defendant might, notwithstanding the negligence of the plaintiff, have avoided the injury by the exercise of ordinary care, the plaintiff can still recover. The nature and effect of these issues have been fully discussed by this court in the recent case of Curtis v. Railroad, 130 N. C., 437. There was certainly evidence tending to prove the negligence of the defendant.

The mere fact that the deceased went upon the railroad bridge was in itself some evidence of contributory negligence to be considered by the jury in connection with all the surrounding circumstances. It was not negligence per se but only evidence tending to prove negligence, which might be nullified or rebutted by other controlling circumstances. The courts are more and more abandoning arbitrary definitions and distinctions as to negligence, and coming down to the rule of the prudent man. Would a woman of ordinary prudence, in like circumstances with the deceased, looking up a straight track for 500 yards and seeing nothing, knowing that no trains were then due, and that if a train were to come, it would be required by rule and custom to stop before reaching the bridge, have undertaken to cross the bridge when she had no other convenient means of reaching her destination? The jury might well have answered such a question in the affirm


One of the defendant's exceptions is that the court instructed the jury that "in this cause you will, in considering whether the defendant was negligent, consider whether or not it failed to do what an ordinary prudent and skillful person would have done under the circumstances." We see no error therein. It is certainly correct as an abstract proposition of law. If the court had said nothing more, and had left the jury to apply the law as best they could, there would have been an error of omission; but this was but a small part of a long and elaborate charge in which every phase of the case was presented to the jury. Indeed, it might be questioned whether the charge as a whole was not too favorable to the defendant.

The judgment of the court below is

MONTGOMERY, J., dissenting: The going by a wayfarer upon a railroad trestle or bridge so high that it would be dangerous to get off by leaping to the ground, is per se negli


In the case of Little v. Railroad, 118 N. C., 1072, this court said, "It was conceded and settled in Clark v. Railroad, 109 N. C., 430; 14 L. R. A., 749, that one who attempts to walk across an elevated trestle so high that it is dangerous to jump from it to the ground, is negligent, and that where he is injured by a train while crossing, it is the duty of a jury to find in response to an issue involving the question, that he contributed by his own carelessness to cause the injury." In McLamb v. Railroad, 122 N. C., 862, the defendant asked the court to instruct the jury that upon the whole evidence the plaintiff's intestate was guilty of contributory negligence. In the opinion of this court in that case, it was said by way of parenthesis that that instruction was not given for the reason that the third issue as to the negligence of the de


ceased was, by consent of the plaintiff, answered in the affirmative before the charge of the court was read. Plaintiff's intestate there, was killed while walking on a trestle.

I think his Honor should have instructed the jury that the plaintiff as a matter of law was guilty of contributory negligence in going upon the trestle. That being so, it was highly important that the third issue, which involved what is called the last clear chance on the part of the defendant, should have been submitted to the jury upon full and thorough instructions in the light of negligence on the part of the plaintiff's intestate.


(Filed March 17, 1903.)

1. CONTRACTS-Easements.

A contract allowing a timber company to construct and use a tramway on land of plaintiff for carrying away timber from land of plaintiff and any other timber that they may find convenient to move for five years does not authorize the use of the tramway for carrying other timber after the expiration of the five years.


2. DAMAGES-Measure of Damages-Trespass.

In an action for damages for the use of a tramway after the right to

use it had expired the measure of damages is the rental value of the land occupied and in addition the decrease in rental value of other land affected by the tramway.

3. EMINENT DOMAIN-Damages-Permanent Damages-Private Corporations Acts 1895, Ch. 224—Acts 1887, Ch. 46, Secs. 1, 2-The Code, Secs. 2056, 2023.

A private corporation is not entitled to condemn land for a tramway solely for its own use and have permanent damages assessed therefor, except to obtain a temporary easement ex necessitate.


-The Code, Sec. 244.

In an action for damages to land a proceeding for the condemnation of an easement cannot be set up as a counter-claim.

5. EMINENT DOMAIN-Evidence-Damages-Trespass.

In an action to recover damages for occupying land with a tramway, the defendant is not entitled to show in mitigation of damages that he hauled freight free of charge for the tenants of the plaintiff.

ACTION by M. A. Leigh against the Garysburg Manufacturing Company, heard by Judge George H. Brown and a jury, at April Term, 1902, of the Superior Court of NORTHAMPTON County. From a judgment for the plaintiff, the defendant appealed.

Thos. W. Mason and W. E. Daniel, for the plaintiff. Day & Bell, S. J. Calvert and Battle & Mordecai, for the defendant.


DOUGLAS, J. This is an action to recover damages for the unlawful occupation of land for the use of a tramway and to enjoin its further occupation. The defendant by a written contract dated May 4, 1894, bought all the timber measuring 14 inches at the stump standing on the plaintiff's land, at a price that practically amounted to one dollar per thousand feet, and agreed to cut and remove all said timber within the period of five years from the beginning of the contract. The contract further provided that the defendant should "have the right to build railroad or tramway across the above named lands for the purpose of removing said timber, and also any other timber that they may find convenient to move over said tramway or railroad." The defendant finished cutting and removing all of said timber within the time allowed by the contract, but continues to use its tramway on said land for the purpose of hauling logs cut on lands not belonging to plaintiff, claiming that the right given in the contract to remove "any other timber that they might find convenient to move over said tramway or railroad," did not expire with the expiration of the contract, but continued indefinitely "so long as it has timber trees beyond said land from defendant's plant at Garysburg, and which could not be conveniently hauled to said plant except over said land."

The defendant also alleged in its answer that such was the actual agreement between the parties, and that, if not sufficiently expressed in the written contract, it was omitted by mutual mistake, and asked that the written contract be reformed in accordance therewith. The defendant further set up as a so-called counterclaim that it had the right to condemn a right-of-way, and asked that the issue of permanent damages be submitted to the jury. The following issues were submitted apparently without objection:

1. Has defendant a right-of-way over the lands of plaintiff after the expiration of five years from the signing of the

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