Watson v. Black Mountain Railway Co.

Allen, J. The guardian was entered upon the record as a party upon the motion of the defendant, and it cannot- well say that it was taken by surprise, nor does it claim that it was not ready for trial, or urge any reason for the continuance except as a matter of legal right upon a new party being made. If new parties are made or amendments allowed, which change the issues, and a party is not' prepared with his evidence to meet the changed conditions, he is entitled to' a continuance as a matter of right (Dobson v. R. R., 129 N. C., 291), but ordinarily the ruling of the judge upon a motion for continuance is a matter of discretion and not reviewable, and in this case it appears that there was no change in the pleadings or' 'issues, and no suggestion that it would be more prejudicial to the defendant to try at that time than at any other. We are also of opinion there was no change of parties in a legal sense by marking the name of the guardian on the record. It was said in Tate v. Mott, 96 N. C., 23: “Generally, an infant can maintain an action if he has a just cause of action, *182 just as an adult may do, tbe only difference being in tbe mode of conducting- it. His action must be brought and prosecuted in bis own name, and it is in all respects bis, just as if be were of full age; but it must be managed and prosecuted, not by himself, but by bis guardian or next friend, under tbe supervision and control of tbe court. This is necessary, because of bis presumed' lack of discretion and want of capacity to understand' and manage bis own affairs, bis inability to bind himself and to become liable for costs. Tbe guardian or next friend is not in a legal sense' a party to tbe action, although bis name appears in tbe record,” and this has been approved several times. Tbe minutes of tbe meetings of tbe stockholders and directors of tbe defendant were properly admitted in evidence. They were produced by. tbe defendant pursuant to notice, and this 'is at least sufficient evidence of genuineness to justify their admission^ and tbe defendant does not say now they are not tbe minutes. These minutes not only furnish evidence that Ruffin was not an independent contractor, but they go far to establish that be substantially owned tbe defendant company, and, as testified to by tbe president of tbe company, that be was in a position to change tbe contract under which it was.claimed be was working, at will, as be owned a majority of tbe stock. If, however, tbe evidence was- incompetent, it would be no ground for a new trial, because tbe doctrine is well established and is applicable here, that tbe work at which the-plaintiff was engaged is so intrinsically dangerous that protection from liability will'not be afforded by an independent contract, and this, also disposes of tbe various exceptions to tbe rulings of bis Honor, and tbe exceptions to bis charge on tbe question of independent contractor. Arthur v. Henry, 157 N. C., 402. Tbe position óf tbe defendant is undoubtedly true that compromises are favored, and that usually evidence of what has been said or done in an attempt' to settle is not competent, but in this ease it was not offered as an admission of liability nor to attack tbe general character of tbe witness, but to show that although bis motives might be commendable to protect a rail *183 road wbicb bad been recently organized, and wbicb be believed meant mucb for tbe development of bis section, wbicb bad theretofore bad no railroad facilities, be was unduly zealous, and bad gone so far as to approach tbe client for tbe purpose of compromising, after agreeing at a prior term of court that this would not be done. For this purpose tbe evidence was competent, as bearing on the bias of tbe witness, who bad testified to important and material facts in 'behalf of tbe defendant, and bis Honor properly restricted tbe evidence at tbe time it was introduced and again in bis charge. Tbe motion for judgment of nonsuit ought not to have been allowed. Tbe evidence is stronger in behalf of tbe plaintiff than in Harris v. Quarry Co., 137 N. C., 204, because in this case there is evidence that.tbe plaintiff was pursuing a method wbicb was safe, when be was directed by tbe party in charge for tbe defendant to adopt another and more dangerous method, wbicb caused bis injury. Tbe authorities sustaining this proposition are collected in Lynch v. R. R., post, 249. We have examined all of tbe exceptions, including those not assigned as errors in accordance with tbe rules of Court, and find No error.