NEGLIGENCE—Continued.
The running of a train at a greater speed than is allowed by
an ordinance is evidence of negligence. Smith v. Rail-
road, 819.
In an action by an employee for injuries sustained by being
pushed against machinery, it is competent as explaining
the nature of the injury to show that the machine was not
cased. Lamb v. Littman, 978.
In this action against a warehouseman to recover damages for
the loss of goods by fire, the evidence is not sufficient to
show negligence on the part of the railroad warehouseman.
Lyman v. Railroad, 721.
Where the statutes of another state authorize a recovery for
death by wrongful act and are substantially the same as
those in this state an administrator appointed here can sue
here for the death of his intestate which occurred in the
other state, the courts of that state not having construed
its statutes to the contrary. Harril v. Railway Co., 655.
That certain parts of an instruction given on the issue of neg-
ligence pertains more properly to the issue of contributory
negligence is not prejudicial to the defendant, if it
operates, as in this case, more strongly against the plain-
tiff if given on the first issue than on the second. Gordon
v. Railroad, 565.
In an action for damages for personal injuries, it is not neces-
sary for the jury to pass on the issue as to the last clear
chance where they find the defendant was negligent and
the plaintiff was not guilty of contributory negligence.
Harris v. Railroad Co., 160.
In an action for burning timber, when a witness testifies that
he saw smoke and went to the place where it was and saw
the fire burning in the tree tops on the ground near the
railroad, and that the engine had just passed, is some evi-
dence of negligence, the sufficiency of which is for the
jury. Craft v. Timber Co., 151.
A company operating a private logging road is liable for fire
caused by the ignition of combustible material negligently
permitted to remain on land necessarily used by it as a
right of way. Craft v. Timber Co., 151.
In this action for personal injuries, the evidence is sufficient
to justify the finding by the jury that the defendant is
guilty of negligence and the plaintiff not guilty of con-
tributory negligence. Pharr v. Railway Co., 418.
NEGLIGENCE-Continued.
The negligence of a person in whose care a telegram is sent
will be imputed to the sendee and not to the telegraph
company. Hinson v. Telegraph Co., 460.
Where a person in whose care a telegram is addressed refuses
to receive the same, the telegraph company must make
reasonable effort to deliver it to the sendee. Hinson v.
Telegraph Co., 460.
Where a carrier contracts to transport a circus and is indemni-
fied by the circus company against any loss sustained by
injury to the employees of the circus, the carrier is not
thereby relieved of its liability for negligent injuries to
such employees. Railway Co. v. Main, 445.
In an action for personal injuries it is not error to charge
on the issue of negligence that the jury should consider
whether or not the defendant failed to do what an ordi-
narily prudent and skilful person would have done under
the circumstances. Harris v. Railroad Co., 160.
It is not negligence per se for a person to go upon a railroad
bridge, but it is some evidence of contributory negli
gence. Harris v. Railroad Co., 160.
Under the evidence in this case the trial court properly in-
structed that if the jury believed the evidence they should
find that the defendant canal company negligently injured
the property of the plaintiff. Pinnix v. Canal Co., 124.
A canal company is liable for unlawfully damaging the lands
of an adjacent landowner, even though such work is not
negligently done.. Pinnix v. Canal Co., 124.
An instruction by the trial court that it is the duty of an engi-
neer to ring the bell and blow the whistle when approach-
ing a crossing is erroneous. Edwards v. Railroad Co., 99.
No act or omission, though resulting in damage, can be deemed
actionable negligence unless the one responsible could,
by the exercise of ordinary care, under all circumstances,
have foreseen that it might result in damage to some one.
Frazier v. Wilkes, 437.
In an action for personal injuries, the plaintiff cannot recover
where it appears that there was no omission or breach of
duty on the part of the defendant and that the injury was
an accident. Alexander v. Mfg. Co., 428.
The evidence in this case warrants an instruction that in deal-
ing with a trespasser a railroad company is not held to
the highest degree of care, but is required to use only ordi-
nary care, that is, to do him to intentional or wilful injury.
Lewis v. Railroad Co., 382.
A passenger who voluntarily goes upon the platform of a
moving train for the purpose of alighting at the station
and is injured by reason of a jerk in the train is not
entitled to recover therefor. Denny v. Railroad Co., 340.
The operator of a hand car may assume that persons on a trestle
will step off, and he owes no duty to them until he discovers
by their conduct that they cannot or do not intend to leave
the track, and this conduct must manifest itself positively
and not be inferred from remaining on the track. Wright
v. Railroad Co., 327.
In an action to recover damages for personal injuries, there
being no evidence tending to show negligence on the part
of the railroad company, no presumption of negligence
arises upon the simple proof of injuries or death caused
by the company, if the injured party is not a passenger.
Clegg v. Railroad Co., 292.
Where an employee undertakes to do something which it is not
his duty to do, he thereby assumes the risk. Hamrick v.
Quarry Co., 282.
A person who goes upon the train with his family, after giving
notice to the conductor thereof, is not a trespasser, and if
he is injured in alighting from the train by the negligence
of the railroad company, the company is liable, Davis v.
Railroad Co., 291.
Where a person is injured as here, in attempting to extinguish
a fire negligently set to her premises by a railroad com-
pany, the company is liable. Burnett v. Railroad Co., 261.
The evidence in this case as to the negligence of a railroad
company in failing to ship goods is sufficient to be sub-
mitted to the jury. Porter v. Railroad Co., 71.
Where a railroad company negligently permits bales of cotton
to stand on its platform until the bagging comes off and
the lint bulges out and it is ignited by fire, the company is
liable for the destruction of property by fire communicated
by sparks from a passing engine to the cotton. Ins. Co. v.
Railroad Co., 75.
Where the duties of a brakeman require him to be on top of
a car, and while reclining with his feet hanging over the
car he is caught and jerked from the car by a loop in a rope
hanging from a water pipe, negligently left over the track,
the railroad company is liable for injuries thereby sus-
tained. Lindsay v. Railrcad Co., 59.
The doctrine is reaffirmed herein that telegraph companies are
liable in damages for mental anguish or suffering. Meadows
v. Telegraph Co., 40.
The failure of a railroad company to have self-coupling devices
on their cars is a continuing negligence; and, to an action
for an injury resulting therefrom, contributory negligence
is not a defense. Elmore v. Railroad, 865.
NEGOTIABLE INSTRUMENTS.
The possession of a non-negotiable instrument by one claim-
ing to be assignee thereof is presumptive evidence of owner-
ship. Beaman v. Ward, 68.
The evidence herein as to fraud and want of consideration in
the obtaining of a negotiable instrument is not sufficient
to be submitted to the jury. Beaman v. Ward, 68.
Where a debt is made payable in two instalments, maturing
at different times, the creditor may elect to wait to sue till
the second instalment is due and the statute of limitations
will not begin to run until that time. Cone v. Hyatt, 810.
In an action to recover on a negotiable instrument, it is not
sufficient for the defendant merely to allege fraud, but
the facts constituting the fraud must be alleged. Beaman
v. Ward, 68.
NEWLY DISCOVERED EVIDENCE. See "Evidence"; New Trial."
NEW TRIAL. See "Trial.”
It is not improper for the trial judge during the trial and while
reading the evidence to the jury, to move to a table within
the bar in front of the jury. Seawell v. Railroad, 856.
It is not prejudicial for the trial judge to order a witness for
the defendant into custody for laughing at certain evi-
dence offered by the plaintiff, such witness afterwards stat-
ing that he was not laughing, but coughing, and the court
taking no further notice of the matter and releasing him
from custody. Seawell v. Railroad, 856.
The time and order in which the trial court instructs relative to
negligence, contributory negligence and burden of proof,
in an action for personal injuries, is not sufficient ground
for a new trial. Lenoir v. Railway Co., 382.
A motion made in the superior court for a new trial for newly
discovered evidence must be made and passed upon at the
same term at which the trial is had. Turner v. Davis, 187.
NEW TRIAL-Continued.
A refusal of a trial judge to set aside a verdict for the reason
that a juror was alleged to have been asleep during the
trial, will not be reviewed where the trial judge does not
find the facts and it will be presumed that the refusal was
warranted by the facts. Pharr v. Railroad Co., 418.
Under Acts 1897, Chap. 109, as amended, a new trial will be
ordered when a motion to non-suit has been improperly de
nied. Prevatt v. Harrelson, 250.
Where the Supreme Court is unable to ascertain from the ex-
amination of the record and the statement made by the
trial judge sufficient facts to enable the court to determine
the case, a new trial will be ordered. Sprinkle v. Wellborn,
468.
NOLLE PROSEQUI.
The discharge of one of three defendants and the entry of a
verdict of not guilty as to another are proper subjects of
comment by counsel in the trial of the other defendant.
State v. Hall, 1094.
NON-SUIT.
When a non-suit is granted under Acts 1897, Chap. 109, as
amended, the plaintiff may bring a new action within one
year. Prevatt v. Harrelson, 250.
Under Acts 1897, Chap. 109, as amended, a new trial will be
ordered when a motion to non-suit has been improperly de
nied. Prevatt v. Harrelson, 250.
A motion for non-suit treated as a motion to dismiss for want
of jurisdiction may be made after verdict. Parker v. Ex-
press Co., 128.
A dismissal of an action for the want of jurisdiction of the
parties is similar to a non-suit and another action may be
commenced within one year thereafter. Harris v. Daven-
port, 697.
NOTICE. See "Lis Pendens."
Where a judgment against a principal and the sureties on a
note is paid by the sureties, and an assignment thereof is
made to a trustee for the benefit of the sureties, but by a
mistake payment is entered on the judgment record which
is afterwards corrected by the entry thereon of the as-
signment, a person taking a mortgage on the property of
the judgment debtor, after the assignment is entered on
the record, takes with notice of the assignment. Patton v.
Cooper, 791.
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