Perry v. Norfolk Southern Railroad , 171 N.C. 38 ( 1916 )

Civil action to recover damages to plaintiff's land and crops (39) grown thereon by the construction of defendant's road through said land and by alleged negligent failure to keep open the culverts under the road-bed. On denial of liability, the jury rendered the following verdict:

1. Is the plaintiff the owner of the land described in the complaint? Answer: "Yes."

2. Have the lands of the plaintiff been damaged by the negligence of the defendant, as alleged in the complaint? Answer: "Yes."

3. If so, in what amount? Answer: "$400."

4. Have the crops of plaintiff been damaged by the negligence of the defendant, as alleged in the complaint? Answer: "Yes."

5. If so, in what amount? Answer: "$600."

6. Is plaintiff's cause of action barred by the statute of limitations? Answer: "No."

Judgment on the verdict for plaintiff, and defendant excepted and appealed. The submission of a controversy of this character on issues addressed to the land and crops separately, while not always necessary, is at times desirable for the proper presentation of the questions involved, and such a course has been approved with us by direct decisions on the subject. Beasley v. R. R., 147 N.C. 362; Ridley v. R.R., 124 N.C. 37.

We are of opinion, however, that there was error committed to defendant's prejudice in charging the jury on the fourth issue: "That if they believed the evidence in this case they would answer the issue ``Yes.'"

While there are facts in evidence tending to support plaintiff's position, there is also testimony on the part of the defendant to the effect that plaintiff has suffered no injury from the construction and maintenance of the defendant road, either to his land or crops, and the issue should have been submitted as an open question for the jury to determine.

And, owing to the connection between the issues on the question of liability, for the error indicated, we think that, in the discretion of the court, a general new trial should be awarded.

On the issue as to the statute of limitations it has been held with us that for injuries arising from the original and permanent construction of a railroad, properly maintained, the action is controlled by section 394 of Revisal, requiring that the same shall be instituted within five years from the infraction of substantial damages to the property. (40) But for injuries arising from negligent failure to properly maintain the road, such as keeping open culverts and the like, actions may be brought from time to time and recovery had for the three years preceding the institution of the suit, as in ordinary cases of recurrent injury.

The differing views will be found presented and illustrated in Rice v. R.R., 167 N.C. 1; Duval v. R. R., 161 N.C. 448; Campbell v. R. R.,159 N.C. 586, and other like cases, and it may be in the further trial of the cause that the issue on the statute of limitations should also be submitted to the jury.

For the reasons heretofore stated, defendant is entitled to a new trial of the case, and it is so ordered.

New trial.

Cited: Barclift v. R. R., 175 N.C. 116 (3c); Barcliff v. R. R.,176 N.C. 41 (3e); Midgett v. Transportation Co., 180 N.C. 72 (2c);Lightner v. Raleigh, 206 N.C. 504 (3c); Ivester v. Winston-Salem,215 N.C. 8 (3c).