Ashford v. . Davis

This is an action to recover damages for loss of goods by negligence of the common carrier. The action was begun 16 May, 1919, against W. D. Hines, Director General. Before the trial in the Superior Court, the defendant J. C. Davis was appointed agent by the President under section 206 of the Transportation Act of 1920, and the motion was made by plaintiff at the trial to substitute him in place of Hines, Director General, as Director. Verdict and judgment for plaintiff. Appeal by defendant. The original service was made on a local agent of the railroad company. W. D. Hines, Director General, appeared in the register's court, defended the action, and appealed from the judgment (90) to the Superior Court. The general appearance waived all defects and irregularities, and would have been sufficient even if there had been no service at all of the summons shown. C.S. 490.

This action was begun before 1 March, 1920, and there being no stated time in which the agent of the government designated to be substituted for the former Director General was to be made a party, the motion to dismiss the action was properly denied. Bagging Co. v. R. R., 184 N.C. 73.

The motion to nonsuit was properly disallowed, as the court could not consider any of the defendant's testimony in its favor on such motion, but must take the evidence in the most favorable aspect for the plaintiff.Guano Co. v. Mercantile Co., 168 N.C. 223.

The charge of the court put the burden on the plaintiff, not only to prove that the defendant was negligent, but also that such negligence was the proximate cause of the injury. There was no error in refusing the prayers of the defendant as the instructions given substantially covered all that the defendant was entitled to. The issues submitted by the court were sufficient to present all the controverted matters in the case, and there was no error in rejecting those tendered. Bank v. Ins. Co.,150 N.C. 770.

No error.

Cited: Asheboro v. Miller, 220 N.C. 300; Wilson v. Thaggard,225 N.C. 350.