Carlton v. Wilmington & Weldon Railroad

104 N.C. 365

• Court: Supreme Court of North Carolina
• Decided: September 15, 1889
• Status: Published

Opinion

Clark, J.

— after stating the case: The first prayer for instruction asked, and refused, is based upon the idea that live stock on the approach of- the locomotive will show the same judgment and discretion as human beings under the same circumstances. “It was reasonably certain that the horse would be frightened,” said the late Chief Justice, in Snowden v. R. R., 95 N. C., 93, “ when he saw what was rapidly, in appearance, coming upon him, and would not remain quiet when it passed in three feet of him. He would be quite as apt, as he did in fact, after rushing a short distance along the ditch, to leap upon the road as upon the opposite bank. This possible, if not probable, action would suggest itself to any careful and considerate person, and the necessity of being on the lookout and taking proper precautions, such as slowing the locomotive, to guard against mishap and danger.” But plaintiff’s proposition is too unreasonable to need citation or discussion. The charge as given, in lieu of the first prayer, is correct.

The second prayer for instruction was substantially given, with the proper modification that the test was not whether proper effort was used “ after the mare was discovered,” but “ after, by the exercise of a proper outlook, she could have been discovered.” Wilson v. R. R. 90 N. C, 69.

The third prayer was substantially given. The defendant has no ground to complain because the exact language of his prayer is not given, if it is in substance given. State v. McNeill, 92 N. C., 812; Conwell v. Mann, 100 N. C., 234. Indeed the, charge as given is open to the exception that it is too favorable for the defendant, in that the jury were instructed that the burden was on the plaintiff to show that the horse was killed in consequence of the negligence of the defendant. The action having been brought within six months after the cause of action accrued, the statute raised a presumption of negligence on the part of the defendant, and the burden is on it to rebut such presumption. The Code, § 2826; Pippen v. R. R., 75 N. C., 54; Wilson v. R. R., 90 N. C., 69.

There is no error in the refusal of instructions, nor is there any in the charge, of which the defendant can complain. It is proper, however, to say that a general exception to a “ charge as given,” without specifying error, will not be considered in this Court. This has been repeatedly held by this Court in numerous decisions, and has been re-affirmed in Dugger v. McKesson, 100 N C., L; Hammon v. Schiff, 100 N. C., 161; McKinnon v. Morrison, at this term.

Affirmed.