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PHARR V. RAILWAY CO.
infer from this evidence either that the front section was not moving at the time or that the motion was so imperceptible as not to be observed by Russell and the intestate.
Without commenting upon the evidence in detail, we think that the separation of the cars at that part of the train where they were uncoupled and the distance between the cars 20 and 21, when the intestate stepped between them "to put the air on" and the testimony of the engineer that the brakes were stuck ten or twelve cars from the engine, there being 30 or 40 cars in the train, and that he had to go forward to take up the slack in order to come back again and move the cars so as to loosen the pin, was at least some evidence upon which it might reasonably be argued and from which the jury might fairly conclude that the rear car of the front section was standing still at the time the intestate went between the
The question whether the front section of the train had stopped was submitted to the jury in the charge upon the first issue, to which no exception was taken, and the jury by answering the first issue "Yes" necessarily found that the front section was not moving at the time the intestate stepped between the cars. An affirmative answer to the first issue would, therefore, necessarily call for a negative answer to the second.
The engineer knew that he was required to stop at the switch for the purpose of cutting off the rear section of his train so that it could be transferred to the side track, for the intestate, he says, had told him so at Newell's, and there was evidence tending to show that, after the pin had been. drawn and the cars uncoupled, the intestate signaled him to go forward and instead of doing so he moved the front section of the train backward. Two inferences might have been made by the jury from this evidence; first, that the engineer knowing full well what was to be done did not move back
PHARR v. RAILWAY CO.
any further than was necessary to loosen the pin or "ease upon it" and then stopped, as he should have done; and, second, that the intestate, who had given him the signal to go forward, had the right to suppose that he would do so, and was not required to anticipate his negligence in disregarding the signal, if he saw it, or to presume that he did not see it; and this being so, the intestate might well have thought, as a prudent man, that he could go between the cars with perfect safety.
The question upon the second issue was not whether there was any evidence that the rear car of the front section had stopped, but whether there was any evidence that it was moving at the time the intestate attempted to set the brakes on the rear section, and unless the evidence was sufficient to satisfy the jury that the car was moving, the defendant failed of course to sustain its contention and was not entitled to a favorable finding upon that issue without reference to the question whether the plaintiff offered any evidence to show that it had stopped. This is clear upon reason and authority.
Upon a careful review of the case, we are of the opinion that the state of the evidence was such as to fully justify the charge of the court and the finding of the jury upon the second issue. The objection of the defendant can not be sustained even if it had been made before verdict. Sutton v. Walters, 118 N. C., 495; Holden v. Strickland, 116 N. C., 185.
We see no merit in the defendant's motion to set aside the verdict because the juror, Brown, was asleep during the trial. The evidence whether the juror was asleep was conflicting, and when the court denied the motion it must be presumed that the facts were found in accordance with the affidavit of the juror that he was not asleep, or, at least, that the facts were so found as to warrant the decision of the court. State v. Taylor, 118 N. C., 1262; Albertson v. Terry, 108 N. C.,
PHARR v. RAILWAY CO.
75. This court cannot pass upon the affidavits, but in order to entitle the moving party to a review here of the ruling below, the facts must be found and spread upon the record, and the court must always find the facts when requested to do so. Smith v. Whitten, 117 N. C., 389; Albertson v. Terry, 108 N. C., 75. It is well settled that this court cannot find facts or review them, as a general rule, but can only pass upon "matters of law or legal inference." Love v. Moody, 68 N. C., 200; State v. Best, 111 N. C., 643. Motions of this sort must be made in apt time. The knowledge of the alleged fact, upon which the defendant bases its motion, was acquired during the trial and before a verdict was rendered, and the matter should, at the earliest opportunity, have been brought to the attention of the court. It has been said by this court that, after a defendant has taken chances for a favorable verdict, the purposes of justice are not subserved by listening too readily to objections not taken in apt time. State v. Perkins, 66 N. C., 128; Spicer v. Fulghum, 67 N. C., 18.
There was a way in which the defendant could have the juror aroused, if he was asleep, without serious, if any, prejudice to its interest, and a proper reminder or warning from the court would probably have been sufficient to keep him awake until the end of the trial. The motion, under the circumstances of this case, was within the sound discretion of the court, and we do not see that it was improperly exercised. State v. Miller, 18 N. C., 500; State v. Fuller, 114 N. C., 885.
We have been unable to discover any error in the rulings of the court below.
Per Curiam. Judgment Affirmed.
FIRE EXTINGUISHER Co. v. COTTON MILLS.
FIRE EXTINGUISHER CO. v. MOORESVILLE COTTON MILLS.
(Filed April 28, 1903.)
1. CONTRACTS—Construction-Written Contracts.
Where a writing is attached to a contract and is referred to in the contract, it thereby becomes a part of the contract.
Where a party has a copy of a contract, with a written agreement thereto, and allows certain work to be performed under the attached agreement, he thereby recognizes the attached writing as a part of the contract.
ACTION by the General Fire Extinguisher Company against the Mooresville Cotton Mills, heard by Judge Thomas J. Shaw and a jury, at January Term, 1903, of the Superior Court of MECKLENBURG County. From a judg ment of non-suit, the plaintiff appealed.
Burwell & Cansler, for the plaintiff.
MONTGOMERY, J. The plaintiff and the defendant entered into a contract in writing in which the plaintiff was to make certain improvements or additions to the mill plant of the defendant. In the body of the contract, the proposal to do the work consisted in the furnishing and erecting by the plaintiff of "a system of improved Grinnell Automatic Sprinklers as described and enumerated in the within specifications." There was also a clause in the contract printed in large capital letters in these words: "It is explicitly understood and agreed that no obligations other than herein set forth and made a part of this proposal and acceptance shall be binding upon either party." It was also agreed that the plaintiff's "price for the work herein specified will be $1,056." It was also further agreed in the last clause of the contract that "Any additional work or apparatus which
FIRE EXTINGUISHER Co. v. COTTON MILLS.
may be required, not included in our specifications" (the last five words being in large capital letters) should be supplied by the defendant, or if by the plaintiff at prices to be agreed upon. The contract was in the shape of a general form used by the plaintiff with blanks for price, names of parties, etc. Following the signatures of the parties to the contract, the following writing was appended: "We propose to furnish and instal a complete wet system of Improved Grinnell Sprinklers in main mill, picker room, dust room, engine and boiler room, to be according to the Factory or Mutual Insurance Company, for the sum of $1,056, additional for tank riser, $75. We commence on the inside of the building at the foot of each riser and at the bottom of the tank to be furnished by you. Additional for outside work to connect sprinkler work and leave plugs for extension, Post indicator valves to control risers for the sum of $175." The $1,056 has been paid for the automatic sprinklers.
This action was brought by the plaintiff to recover $250 for the building and erecting by the plaintiff of the tank riser and for outside work to connect sprinkler work, etc. It was admitted by the defendant that the plaintiff had erected the Improved Grinnell Automatic Sprinklers, according to the contract, and also that the plaintiff had constructed the tank riser and had performed the outside work to connect the sprinkler work and leave plugs for extension, post indicator valves to control risers "according to the terms and conditions set out in the contract and specifications attached;" and that all the work had been duly accepted by the defendant. His Honor intimated that he would instruct the jury that if they believed the evidence to answer the issue is the defendant indebted to the plaintiff, if so, in what amount?No. The plaintiff took a non-suit and appealed.
We think there was error in the ruling and that the plain