Plemmons v. Railroad

Brown, J. (1) The defendant requested the court to dismiss the action because the administratrix: had not given an administration bond at the time the letters of administration were issued. The issuing of the letters cannot be collaterally attacked in this action. If the clerk of the Superior Court issued the letters in violation of the statute without requiring the proper bond, he should revoke them at once of his own motion, or upon the application of anyone interested in the intestate’s estate. Until he does' so, and for any devastavit in the interim, the clerk’s official bond is undoubtedly liable. For the purpose of this action His Honor’s ruling on the first issue is correct. (2) The defendant asked the court in apt time to nonsuit the plaintiff upon the ground that there was no sufficient evidence tending to prove that the intestate was killed by the negligence of the defendant. There is evidence tending to prove that the intestate was killed by the negligence of the defendant. There is evidence tending to prove that the intestate was run over by the defendant’s train in the yards of the defendant in Asheville on the night of November 25, 1900; that the intestate was lying across the track unconscious ; that the track was straight for a distance of some 300 feet or more; that the headlight of the locomotive was burning; that the train was running slowly and was actually stopped within about 80 feet after striking the man. There was evidence tending to prove that the engineer or fireman *288 either saw the object lying across the track or could easily have done so, to the distance of 100 yards or more. We have examined the evidence carefully, and under the decisions of this court, in similar cases, the judge below properly submitted the issues to the jury. Clegg's case, 133 N. C., 304; Upton's case, 128 N. C., 173, 176; Lloyd's case, 118 N.C., 1010, 1014; Pickett’s case, 117 N. C., 616, 639. We find no error in the record. Affirmed.