Massey v. North Carolina Railroad, 169 N.C. 245 (1915)

April 22, 1915 · Supreme Court of North Carolina
169 N.C. 245


(Filed 22 April, 1915.)

1. Courts — Continuance of Case — Discretionary Powers — Appeal and Error.

The continuance of & case is within the discretion of the trial judge, and will not be reviewed on appeal when no abuse thereof is made to appear.

2. Instructions — -Trials—Negligence—"Wrongful Death — Measure of Damages.

The instruction of the court to the jury upon the measure of damages recoverable for the wrongful death of the plaintiff’s intestate is approved under 'Ward, v. R. R., 161 N. C., 186, and that line of cases.

Appkal by defendant from Rountree, J., at September Term, 1914, of DURHAM.

Civil action, tried upon these issues:

1. Is the plaintiff the duly qualified administratrix of Patrick H. Massey? Answer: “Yes.”

2. "Was the plaintiff’s intestate killed by the negligence of defendant’s lessee, as alleged in the complaint? Answer: “Yes.”

*2463. If so, did plaintiff’s intestate by negligence on Ms part contribute to Ms death? Answer: “No.”

4. What damages, if any, is the plaintiff entitled to recover ? Answer: “$9,750.”

From the judgment rendered defendant appealed.

Bryant & Brogden for plaintiff.

Guthrie & Guthrie, J. L. Morehead, W. G. Bramham for defendant.

Per CuriaM.

The negligence of the defendant and its liability for damages is admitted. The only assignments of error relate to the refusal of his Honor to continue the case at the instance of the defendant, and to Ms Honor’s charge upon the question of damages. It is well settled that the continuance of the cause is within the sound discretion of the judge. We find nothing in this record denoting any abuse of such discretion. We have examined the charge of the court on the question of damages, and find it to be a correct expression of the law, as laid down by this Court in a number of cases. Burton v. R. R., 82 N. C., 507; Benton v. R. R., 122 N. C., 1009; Mendenhall v. R. R., 123 N. C., 278; Watson v. R. R., 133 N. C., 190; Ward v. R. R., 161 N. C., 186.

No error.