Claris v. Norfolk Southern Railroad

Supreme Court of North Carolina

Claris v. Norfolk Southern Railroad

168 N.C. 415

DecidedMarch 17, 1915

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This text of 168 N.C. 415 (Claris v. Norfolk Southern Railroad) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Claris v. Norfolk Southern Railroad, 168 N.C. 415 (N.C. 1915).

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Opinion

AlleN, J\

The statute of limitations applicable to the plaintiff’s cause of action is section 394, subsection 2, of the Revisal, which limits the time within which an action may be brought to five years from the time the cause of action accrues, and in Duval v. R. R., 161 N. C., 450, the Court, speaking of this section, says: “Construing the section, the Court has several times held that for such an injury recovery must be for the entire wrong, and the cause of action accrues when the first substantial [417]*417injury is caused by reason of any structure of a railroad of a permanent nature”; and to the same effect are Campbell v. R. R., 159 N. C., 586; Stack v. R. R., 139 N. C., 366; and Staton v. R. R., 147 N. C., 428.

Applying this rule, to the evidence, it is clear that his Honor was in error in holding that upon any view of the evidence the plaintiffs cause of action was barred.

The evidence of the plaintiff himself tends to prove that the first substantial injury was in 1908, but if we discard his evidence, the witness, Harvey Allen, who was testifying at September Term, 1914, said that the road was constructed six or seven years ago, and if we accept the longest period, seven years, this would furnish evidence that the road was constructed in September, 1907, which would be less than five years from the commencement of the action, 1 March, 1912.

This witness also testified that after the road was built the defendant cut ditches down the railroad, a part of the ditches being cut at the time the road was built and a part a year or so thereafter, and that these ditches diverted water.

The only other witness who speaks of the time when the road was constructed. is T. E. Hooker, who says: “I think the road was built in 1906”; but this would at most only furnish a conflict in the evidence which would have to be settled by the jury.

For the error pointed out a new trial is ordered.,

New trial.

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AlleN, J\

The statute of limitations applicable to the plaintiff’s cause of action is section 394, subsection 2, of the Revisal, which limits the time within which an action may be brought to five years from the time the cause of action accrues, and in Duval v. R. R., 161 N. C., 450, the Court, speaking of this section, says: “Construing the section, the Court has several times held that for such an injury recovery must be for the entire wrong, and the cause of action accrues when the first substantial [417]*417injury is caused by reason of any structure of a railroad of a permanent nature”; and to the same effect are Campbell v. R. R., 159 N. C., 586; Stack v. R. R., 139 N. C., 366; and Staton v. R. R., 147 N. C., 428.

Applying this rule, to the evidence, it is clear that his Honor was in error in holding that upon any view of the evidence the plaintiffs cause of action was barred.

The evidence of the plaintiff himself tends to prove that the first substantial injury was in 1908, but if we discard his evidence, the witness, Harvey Allen, who was testifying at September Term, 1914, said that the road was constructed six or seven years ago, and if we accept the longest period, seven years, this would furnish evidence that the road was constructed in September, 1907, which would be less than five years from the commencement of the action, 1 March, 1912.

This witness also testified that after the road was built the defendant cut ditches down the railroad, a part of the ditches being cut at the time the road was built and a part a year or so thereafter, and that these ditches diverted water.

The only other witness who speaks of the time when the road was constructed. is T. E. Hooker, who says: “I think the road was built in 1906”; but this would at most only furnish a conflict in the evidence which would have to be settled by the jury.

For the error pointed out a new trial is ordered.,

New trial.

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168 N.C. 415, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claris-v-norfolk-southern-railroad-nc-1915.

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