Wayne County NcArchives Court.....Wilmington & Weldon Railroad, John Powell & Uriah Denning V. 1873
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Connie Ardrey n/a November 17, 2011, 6:50 pm

Source: N C Reports
Written: 1873

John H. Powell, administrator of Uriah Denning v. The Wilmington & Weldon 
Railroad Company

The Judge who tries a cause has no right to intimate in any manner his 
opinions as to the weight of the evidence, nor to express an opinion on the 
facts.

Where there is any evidence to the contrary, it is erroneous in the Judge to 
say, "We are not informed" of a fact upon which it is for the jury to pass.

Proper time to ask for particular instructions is at or before the close of 
the evidence and before the Judge has given such instructions to the jury as 
he may think the case requires.

Civil Action, tried before Clarke, J., at Wayne Superior Court at January 
(Special) Term, 1872.

The plaintiff claimed damages for injuries received by his intestate, Uriah 
Denning, on the defendant's road. Said intestate, on the 6th of December, 
1870, took passage on a freight train of the defendant at Goldsboro, going to 
Mount Olive, a station on said road south of Goldsboro, on his own private 
business. The train had eight or ten freight cars and a conductor's car, in 
which passengers were usually carried and fare collected, and while going at 
about five or six miles per hour the conductor's car ran off the track, was 
crushed to pieces, and intestate of plaintiff received injuries of which he 
shortly died. At the time of the occurrence, the intestate was a section 
master in the employment of defendant, and had a free pass over defendant's 
road; but the accident did not occur on the section of intestate. There was 
evidence on the part of the plaintiff that the car was unsound and old, and 
there was contradictory testimony on the part of the defendant as to the 
unsoundness of the car. One C. R. Clowe, whose duty it was to inspect trains 
and cars for defendant, testified for defendant that on the 3d of December, 
1870, at Wilmington, he inspected the train, and said car was sound and in 
good order. One James King, a witness for the defendant, testified that he was 
defendant's car inspector in Wilmington - that it was his daily labor, that he 
inspected this car on the 3d of December, 1870, and that it was all right and 
sound. There was much evidence as to other points which it is not necessary to 
state.

Defendant's counsel asked for special instructions on sixteen points, some of 
which were granted and some refused by the Court; but as they are not 
necessary to an understanding of the decision, they are not stated. The 
defendant filed nineteen exceptions to the charge of his Honor, and those upon 
which the case is decided are fully stated in the opinion of the Court.

Verdict for plaintiff and judgment accordingly.
Defendant appealed.

W. T. Dortch and Moore & Gatling, for appeallant
Smith & Strong, contra

NC Supreme Court Justice Rodman, J. - We do not feel at liberty to express any 
opinion upon most of the interesting and important questions of law which the 
counsel were prepared to discuss and upon which they invited us to enter.

We have several times said that on mere matters of practice which were 
presented in a case we would express an opinion, even when it was not 
absolutely necessary to a decision of it. We have supposed ourselves at 
liberty to do this, not only because it is convenient to the profession and 
the public that such questions should be settled at the earliest period, but 
also because by the Code this Court has jurisdiction to prescribe rules of 
practice where they have not been already prescribed by statute or by its own 
rules of decisions. In respect to questions of public law (as distinct from 
rules of practice, which are called the law of the Court,) it is different. If 
on any one exception we are plainly compelled to grant to the appellant a 
venire de novo, to go beyond that and undertake to decide other distinct and 
different questions, although presented by the exceptions, would be to decide 
upon a hypothetical state of facts which may not be presented again, and we do 
not, in general, feel justified in doing it.

In the present case the defendant excepts to the general tone of the Judge's 
instructions to the jury as plainly intimating his Honor's opinion as to the 
weight of the evidence, and he has singled out particular passages as 
especially obnoxious to this criticism. We think that the general tone of the 
instructions is warmer and more animated than is quite consistent with the 
moderation and reserve of expression proper in "stating the evidence to the 
jury in a plain and correct manner and declaring and explaining the law 
arising thereon." There are passages also which a jury might fairly understand 
as expressing an opinion on the facts. No doubt the Judge had in his mind the 
witnesses for the plaintiff only, but there was contradictory evidence as to 
the rottenness of the car and the expression implies that upon the whole 
evidence, or by a preponderance of evidence, the car was rotten, and ignores 
the evidence of defendant on that point.

Again, "we have not been informed that the inspector was competent," &c. Now, 
when a Judge says "we are not informed" of a fact upon which it is for the 
jury to pass, if he keeps within the line of duty he can only mean that there 
is no evidence of the fact. In this case there was some evidence, slight, 
perhaps, bearing on the competency of the inspector, viz: it was his 
profession; he had experience in it for a certain time; his intelligence, or 
the want of it, manifested on the witness stand, &c. The language also implies 
that there was a presumption against the competency and fidelity to duty of 
the inspector, requiring to be rebutted by evidence in his favor. But this is 
incorrect. The presumption is that every professor of any profession, art or 
trade, has at least ordinary skill in it; and that every man does his duty 
with ordinary diligence, cuique credendum est sua arte. The presumption is a 
slight one by itself, but it requires to be rebutted by some evidence of a 
want of skill or of a breach of duty. The principle is too familiar to need 
illustration.

The skill of the inspector was a fact for the jury. For although when the 
facts are given, negligence is a question of law, yet the Judge cannot find 
the facts any more on such a question than in any other. He can only say to 
the jury, "If you find such facts there was negligence. If you find such other 
facts there was not."

We think the Judge erred in the matters stated.

We think it right to notice a practice which appears to have been adopted in 
this case, both because it is contrary to the Code, and to be disappointed of 
on its merits. In this case, it seems that particular instructions were not 
asked for until after the Judge had given such instructions to the jury as he 
thought the case required. To spring upon a Judge at this state of a trial for 
the first time, numerous and difficult points of law not always expressed in 
the most lucid style, is evidently taking him at a disadvantage, and may be 
greatly abused. At the close of the evidence counsel may well be supposed to 
have determined upon the propositions of law upon which they intend to put 
their case, and they should then be presented to the Judge to be considered of 
by him.

The Judge may if he thinks proper, then indicate to counsel his views so as to 
enable them to direct their arguments accordingly; or if the matters require 
consideration, he may wait until the arguments have closed. We do not mean to 
be understood as saying that counsel are, or should be absolutely prohibited, 
even after the Judge has finished his instructions to the jury from calling 
his attention to any point which he has inadvertently omitted, or his 
instructions as to which are not well understood. This is but right and 
proper; but it is evidently a different thing from the practice we are 
censuring.

Let his opinion be certified.

Per Curiam
Venire do novo

Additional Comments:
In the NC Supreme Court January Term 1873

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