Harrell v. Albemarle & Raleigh Railroad

Clark, J. after stating the case: This charge was certainly as favorable to the defendant as it had a right to ask; indeed, we think more so, because, notwithstanding the defendant might have failed to provide itself with side tracks sufficient for its business, it did not follow that it had the right to obstruct the public street and crossing by allowing a shanty-car to remain for several days “ ten feet in the street and two feet on the bridge at the crossing,” especially when the jury find from the evidence that such shanty-car so situated was calculated to frighten the plaintiff’s horse. If the defendant “in the exercise of its industry” was moving the car along its track and crossing the street, and the plaintiff’s horse was frightened thereby, or if the car was on the side track at a place where it had a right to be, &nd the horse took fright, ordinarily the plaintiff could not recover. Morgan v. Railroad, 98 N. C., 247. The railroads [219] are chartered with a view to the exercise of the rights necessary and proper for the’ performance of'the great industry committed so largely to them. But when the car was placed in the street, occupying a part of the bridge, permitted to remain there for several days, and so situated was calculated to frighten plaintiff’s horse and did frighten him, and the Court told the jury notwithstanding that if the putting the car at such place was necessary to the plaintiff’s industry because the other side tracks were filled with cars, that the plaintiff could not recover, the defendant certainly has no cause to complain, Myers v. Railroad, 87 N. C., 345. This covers substantially the objections raised by the prayers for instruction, their refusal, and to the instruction given in lieu thereof: The only exception to evidence is that a witness was allowed to testify that he saw another horse frightened by this car at that place the day before. This evidence was competent, both on the issue submitted by consent whether the car-was calculated to frighten horses, and whether it was negligence to permit it to remain at that point. Affirmed.