Benton v. North Carolina Railroad

30 S.E. 333, 122 N.C. 1007, 1898 N.C. LEXIS 387

• Court: Supreme Court of North Carolina
• Decided: May 24, 1898
• Status: Published

Opinion

Clark, J.:

All the exceptions have been recently passed upon in the decisions of this Court, and it is only necessary to refer to them.

1. The refusal of the Judge to remove is not reviewable. The present statute forbids the Judge to remove a cause ‘ ‘unless he shall be satisfied that the ends of justice demand it,” and when he is not so satisfied by the affidavits offered it is immaterial that counter affidavits are not presented. State v. Smart, 121 N. C., 669; The Code, Sections 196, 197.

2. The court charged the jury as follows: “The measure of damages for loss of life of plaintiff’s intestate is the present value of his net income, and this is to be ascertained by deducting the cost of living and expenditure from his net gross income and then estimating the present value of the accumulation from such net income, based upon his expectation of life.

‘ ‘In applying this rule to the facts in this case, and to enable the jury to properly estimate the reasonable expectation of pecuniary advantage from the continuance of the fife of the deceased, they should consider his age, habits, industry, means, business qualifications, skill and his reasonable expectation of life. ”

These instructions follow the precedents in this Court. Pickett v. R. R. Co., 117 N. C., 616 (at page 638); Burton v. R. R. Co., 82 N. C., 504; Kesler v. Smith, 66 N. C., 154.

3. The defendant moved for judgment against the plaintiff upon the pleadings and proof “for that the pleadings showed that the injury resulting in the death, of the plaintiff’s intestate was due to the negligence of the lessee of the defendant in the operation of the road of the defendant.” The liability of the lessor company in such cases, decided Aycock v. R. R. Co., 89 N. C., 321, has been re-affirmed in the late cases of Logan v. R. R. Co., 116 N. C., 940; Tillett v. R. R. Co., 118 N. C., 1031; Norton v. R. R. Co., at this term.

4. The motion to set aside the verdict because ‘ ‘excessive and not warranted by the evidence” rested in the discretion of the trial Judge and his discretion is not reviewable. Norton v. R. R. Co., supra; Edwards v. Phifer, 120 N. C., 405 and cases there cited; State v. Kiger, 115 N. C., 746; Ferrell v. Thompson, 107 N. C., 421; Whitehurst v. Pettipher, 105 N. C., 40; Goodson v. Mullen, 92 N. C., 211; Brown v. Morris, 20 N. C., 429; Long v. Gautley, Id. 313; Young v. Hairston, 14 N. C., 55.

No error.