Hedges v. . the Wilmington Weldon Railroad Co.

73 N.C. 558

• Court: Supreme Court of North Carolina
• Decided: June 5, 1875
• Status: Published

Opinion

Eea.de, J.

The case Was not argued before us for the de fendant. But after the case had been argued for the plaintiff" and decided by the Court, we permitted Mr. Moore, at his re*' qnest, to put in a brief for the defendant. Upon examining bis brief, we find that the only point which he presents was not argued by the plaintiff’s counsel, and was not supposed by us .to have been made below ; or to appear in the record. If Mr. Moore’s brief had changed our views, we should have felt .obliged to continue the case until next term, so as to allow the plaintiff’s counsel to be re-heard, which shows the propriety of the rule, to have the whole case opened at the hearing; and the impropriety of relaxing it, as we did in this case, except for special and urgent reasons.

We understand the brief of Mr. Moore to abandon all the exceptions except the objection to the competency of the tes-itimony of the witness Warren. We think the objection is founded in a misapprehension of the testimony.

The objection assumes that the plaintiff travelled over the •defendant’s road 160 miles in length, and was injured by the cars running off the track at some “ undesignated point.” And that Warren “ was asked the question, if he did not predict, while traveling on the road a day or two after the accident, that at a certain point on the road a severe jar would be felt.; and that his prediction was verified?” And then it is insisted, that the fact that the track was out of repair at one point is no evidence that the accident occurred at that poiut, or that the road was out of repair at any other point; or at the particular undefined point where the accident did occur; and therefore did not tend to prove negligence on the part of the defendant. But the facts are, that the accident occurred between Wilson and Rocky Mount, two depots twenty-five miles apart, on the 26th of March. And the testimony of Warren was, that two days before, 24th March, he travelled on the road from Wilson to Rocky Mount, and that the road was rough in places, and that at one place a severe jar was felt; and that a day or two afterwards, which must have been 25th or 26th * March, the day before, or the very day of the accident, he travelled back from Rocky Mount to Wilson, and on the route he spoke of the severe jar, and predicted that they would feel it again, and so' they did. So we have it that the accident occurred between these two points ; and that for two or three days just before the accident, the road was out of order, rough in several places, and badly out of order at one place) and is not that some evidence tending to show that the accident occurred at some one of those bad points, and that the defendant was negligent in not repairing them. All this is so plain that the plaintiff’s counsel supposed, and so did we, that the objection to Warren’s testimony was, that he was permitted to speak of what he said on the cars in the way of predicting the “ severe jar ” which they would feel.

We do not think that there is any force in any of the defendant’s exceptions.

There is no error.

Pee Cukiam.

Judgment affirmed.