Avery v. Railroad
Supreme Court of North Carolina
ActioN by Rufus Avery against W. J. Oliver and tbe Southern Railway Company, heard by Judge M. H. Justice, at June Term, 1904, of the Superior Court of Bue.ee County. The plaintiff brought this action to recover damages for injuries to himself which he alleges were caused by the negligence of the defendants.
Read the full summary
ActioN by Rufus Avery against W. J. Oliver and tbe Southern Railway Company, heard by Judge M. H. Justice, at June Term, 1904, of the Superior Court of Bue.ee County. The plaintiff brought this action to recover damages for injuries to himself which he alleges were caused by the negligence of the defendants. The testimony tended to show that he was employed by one Walter Queen, foreman of defendant Oliver, the latter having been employed by his co-defendant, the Southern Railway Cbmpany, to lower a grade on the line of its railway about one mile west of Morganton. In order to do the work, it…
1Opinion of the Court
Walker, J.,
after stating the facts. In an action for negligence the first issue always is, Was the plaintiff injured by the negligence of defendant ? When contributory negligence is pleaded, the next issue is, Did the plaintiff by his own negligence contribute to his injury? And in a case like this one these are the only issues necessary to- be submitted to the jury in order to ascertain whether the plaintiff has established his cause of action, as the third issue, sometimes submitted when the last clear chance to avoid the injury may have been open to the defendant, does not arise. The issue…
2Cases cited3 opinions
- Marks v. Cotton Mills.Supreme Court of North Carolina · 1904
- Lloyd v. P. H. Hanes & Co.Supreme Court of North Carolina · 1900
- Whitson v. Wrenn.Supreme Court of North Carolina · 1903
3Cited by3 opinions
- Smith v. South & Western RailroadSupreme Court of North Carolina · 1909
- Biles v. RailroadSupreme Court of North Carolina · 1906
- Horne v. Atlantic Coast Line RailroadSupreme Court of North Carolina · 1916