the contrary that the car had stopped. But the defendant had the right to have its phase of the evidence submitted to the jury with the instruction that, if they so found the facts, the jury should answer the issue as to contributory negligence "Yes," and not mere¡y that those facts would be evidence which the jury could consider as bearing upon that issue, for the prayer must be taken in connection with the uncontroverted evidence which was that the conductor had gone forward to change the switch; that the stopping place was beyond the switch; that the conductor had not given any invitation to passengers to alight at that point, which was not a regular stopping place (though passengers sometimes got off there); and that he did not see the feme plaintiff when attempting to get off. Under these circumstances the prayer should have been given as asked. Calderwood v. St. R. R., 96 Ala. 318, 11 South. 66. In Nance v. Railroad, 94 N. C. 622, notice had been given by whistle that the train would stop at a regular station and the train had come "nearly, almost, to a full stop." Here there was no notice, and it was not the regular stopping place. There was, it is true, contradictory evidence that the car had come to a full stop, and that the car started forward again without notice as the plaintiff was stepping off. If that phase of fact was found by the jury, the prayer would not be applicable, but the defendant was entitled to an instruction to the jury as to the legal effect of the facts, if found, as his evidence tended to prove them.

There are other exceptions, but they may not occur upon another trial, and need not be discussed.

Error.

(144 N. C. 307)

W. F. MAIN CO. v. FIELDS et al.

4. SAME-BREACH OF WARRANTY OF QUALITY. Where goods warranted to be a certain quality were valueless, and the seller, on being notified of this refused to remedy the defects, the buyer may rescind the contract and lawfully refuse payment.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, § 294.]

Appeal from Superior Court, Scotland County; Justice, Judge.

Action by the W. F. Main Company against W. L. Fields and others. From a judgment for defendants, plaintiff appeals. Affirmed.

This action was commenced before a justice of the peace to recover on an account for $150 for goods sold and delivered. The following issues were submitted: "(1) Was the contract set out in the complaint obtain. ed from defendant by the false and fraudulent representation of plaintiff? Answer Yes. (2) What was the value of the goods sold and delivered by plaintiff to defendant? Answer: Nothing over freight. (3) Did defendant notify plaintiff of defects in the goods and give him opportunity to remedy any defects? Answer: Yes. (4) What amount, if any, is plaintiff entitled to recover of defendant? Answer: Nothing." From a judgment that plaintiff take nothing by his writ, plaintiff appealed.

McLean, McLean & McCormick, for appellant. Maxcy L. John, for appellees.

BROWN, J. 1. The plaintiff tendered the following issue: "What is the amount due under the contract"-and excepted to the issues submitted. We think the issues passed upon by the jury are entirely responsive to the allegations of the pleadings, and that under them each party had the opportunity to offer evidence bearing upon every phase of the controversy. Those material matters which are alleged on the one side and denied on the other should be submitted in the form

1907.)

Where goods sold are warranted to be like the sample, and the defects are latent, and not readily discoverable, the buyer has a reasonable time in which to inspect the goods and notify the seller of any defects in them, notwithstanding the contract of sale specifies that the buyer waives all right to object to the goods by failure to notify the seller within two days from their receipt of defects in the same.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, §§ 817-823.1

3. SAME-NOTICE TO SELLER OF DEFECTS.

Compliance with a provision in a contract of sale, that the buyers must notify the seller of defects in the goods by registered letter, is immaterial where it is shown that the seller received the notice.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 43, Sales, §§ 806-808.]

matter alleged in the answer and not mentioned in the complaint. Shaw v. McNeil, 95 N. C. 535; Owen v. Phelps, 95 N. C. 286. An examination of the answer discloses that the matters embodied in the issues submitted are all pleaded with particularity in the answer of the defendants.

2. It is contended that the defendants did not comply with the stipulations of the written contract under which they purchased. A contract almost identical in its terms with the one sued on here was before the court in Main v. Griffin-Bynum Company, 141 N. C. 43, 53 S. E. 727, in which it was held that the defendant must comply with the warranty and exchange plan, and that plaintiff was entitled to notice of alleged defects and an opportunity to remedy them before the defendant could repudiate the entire contract. In reference to the provisions of said contract, this court said: "According to the terms of this obligation, the plaintiff was entitled to notice of any alleged defect in the

goods as to the quality, and to be given an opportunity to remedy any deficiency before defendant could repudiate the entire contract." The facts of that case were materially different from this. It appeared there that the defendant received the goods promptly and made no complaint; the court saying in reference thereto: "But defendant's own evidence shows that no complaint whatever of any defects in the jewelry was ever made by defendant from the date of the receipt of it to the time of the trial. On the contrary, on June 16, 1902, defendant notified plaintiff that 'goods just received and found all 0. K.'" In respect to these defendants' conduct after receipt of the jewelry, J. T. Fields testified as follows: "We sold some of it, and it was brought back in a short time brassy; no gold about it. We took it back and refunded the money. As soon as we found out what it was, we notified them that it was worthless, and asked them to take it back. They refused to take it back. It was not worth anything. I would not have it. To sell this stuff would ruin a man's business." It is true that the contract countains a provision that all right to make claim that goods are not like sample, or not according to order, are waived unless such claim is sent by registered mail within two days of receipt of goods, and it is likewise true that there is no evidence that the defendants made claim within two days after receipt of the goods. The courts have very generally recognized the right of parties to a contract for the purchase and future delivery of merchandise to contract in reference to the time and place of inspection, and such stipulation is generally enforced. It is probable that a limit of two days for inspection would be held reasonable where the defects are of a character that may be disclosed by an ordinary inspection; but where, as in this case, the defects are claimed to be latent and such as are not readily discoverable by inspection, no such limitation will protect the seller. Under such circumstances, the buyer's right of inspection includes a reasonable time within which to ascertain the quality of his purchase. What is a reasonable time here is a question of fact dependent upon the circumstances of each case and to be determined by the jury. 2 Mechem on Sales, §§ 1377-1381, and cases cited. We are of opinion that, if the evidence is to be believed, the defendants acted with due diligence in making inspection and notifying plaintiff. It does not appear whether they did so by registered letter, but that is immaterial here, as it appears in evidence that plaintiff received defendants' communication and refused to take the goods back or remedy the trouble.

3. It is contended that there is no evidence sufficient to warrant the finding, upon the first issue, that the contract was obtained by the false and fraudulent representation of

plaintiff. There is evidence tending to prove that the goods were apparently all right and up to sample, and that their appearance was such as was calculated to deceive. One witness testified that the goods were "cheap made-up stuff for fake purposes and worth nothing as jewelry." It may be that there is no evidence that the contract was secured by false representation by plaintiff's agent, or that he was inspired by a fraudulent purpose when he obtained the execution of the contract. We are willing to admit that there is no evidence of such antecedent fraudulent purpose at the time the contract was signed, and that plaintiff's agent purposed that the order should be filled in good faith. Yet the jury have found that the goods were worth nothing; that plaintiff was duly notified, and refused to remedy the defects. Such findings in response to the second and third issues are amply sufficient to support the judgment of the court. The goods were purchased by sample, and the findings of the jury establish the fact that the goods when delivered, not only did not come up to sample, but were unmerchantable and worthless, and that plaintiff refused to remedy the defects. In all sales by sample there is an implied warranty that the bulk shall be of equal quality to the sample. Benjamin on Sales, 683. It is also held that, where goods are sold without an opportunity for inspection, there is also an implied warranty that they shall be at least "merchantable," not that they are of the first quality, or even of the second, but that they are not so inferior as to be unsalable among dealers in the article. This is especially true where, as in this case, the vendor is the manufacturer of the articles sold. Benjamin on Sales, 686, and cases cited. "If a man sells an article," says Best, C. J., in Jones v. Bright, 5 Bing. 544, "he thereby warrants that it is merchantable; that is, that it is fit for some purpose. If he sells it for a particular purpose, he thereby warrants it to be fit for that purpose." Lord Ellenborough said, in Gardiner v. Gray, 4 Camp. 144: "Under such circumstances the purchaser had a right to expect a salable article answering the description in the contract. Without any particular warranty this is an implied term in every such contract." In McClung v. Kelley, 21 Iowa, 508, it is said: "The contract always carries with it an obligation that the article shall be merchantable; at least not to have any remarkable defect." In Gaylord Mfg. Co. v. Allen, 53 N. Y. 518, it is said: “A contract to manufacture and deliver an article at a future day carries with it an obligation that the article shall be merchantable." See, also, Rodgers v. Niles, 11 Ohio St. 55, 78 Am. Dec. 290.

Upon the findings of the jury in response to the second and third issues we have no hesitation in holding that under such conditions the right of defendants to rescind

the contract and to lawfully refuse payment is undeniable. 24 A. & E. Encyc. 1161.

We have examined the exceptions in the record, and find no error.

(144 N. C. 314)

CRENSHAW et ux. v. ASHEVILLE & B. ST. RY. & TRANSP. CO.

son had taken hold of the reins and started up the street with the mule, and just before the car passed the plaintiff, he released the brakes. The plaintiff was then about 12 feet from the track, directly out, and the car was from 14 to 18 feet north of a point on the track immediately opposite where the plaintiff was at the time. The mule was then under the control of its driver. If the

1907.)

STREET RAILROADS - INJURIES TO PERSONS NEAR TRACK.

In an action against a street railroad for injuries, it appeared that plaintiff was purchasing fruit at the wagon of a vendor, when the mule by which the wagon was drawn became frightened at the approach of a car and backed the wagon against plaintiff, who retreated down the street; that plaintiff as she retreated signaled the motorman, but thereafter paid no attention to the car; that on seeing the fright of the mule the motorman applied the brakes and brought the car under control, but released the brakes when the mule was brought under control; and that when the car passed plaintiff she was not on the track and was proceeding down the street, but that she walked into the side of the car. Held, that as a matter of law defendant was not negligent, but plaintiff was guilty of contributory negligence.

[Ed. Note.-For cases in point, see Cent. Dig. vol. 44, Street Railroads, §§ 204-209.]

Appeal from Superior Court, Buncombe County; W. R. Allen, Judge.

Action by one Crenshaw and wife against the Asheville & Biltmore Street Railway & Transportation Company. From a judgment in favor of plaintiffs, defendant appeals. Reversed, with directions to dismiss.

See 52 S. E. 731, 140 N. C. 192.

The plaintiff Susan Crenshaw brought this action to recover damages for injuries she received, and which were caused, as she alleges, by the negligence of the defendant. At the time of the occurrence she lived on the east side of Bailey street in the city of Asheville. The track of the defendant's railway is laid on that street, which at and for some distance on either side of the place of the accident runs north and south. The feme plaintiff on August 7, 1901, and late in the afternoon of that day, had gone from her home, across the track of the defendant, and to the opposite, or west side of Bailey street, to buy apples from one Bryson, who was selling them from a wagon drawn by a mule, which was headed towards the north. While Mrs. Crenshaw was standing at the rear end of the wagon making her purchase, one of the defendant's cars, proceeding south, came in sight. The mule was frightened and became unruly. He backed the wagon against the plaintiff, who retreated down the street. She then turned and signaled the motorman by throwing up her hand, but did not pay any attention to the car after that time. The evidence tended to show that the car was running at a moderate rate of speed. The conductor had slackened the speed by applying the brakes, and when Bry

56 S.E-60

have been stopped within 6 or 8 feet. The car was running slowly all the time at that place, about as fast as a man can walk. The plaintiff's witness, Bryson, testified in substance that the feme plaintiff was on the west side of the street at the rear end of his wagon. The car came down the street, and the mule began to back as if it would run the wagon into the car, and the lady ran down the street; that she had gone from 16 to 20 feet, when he got the mule straightened back and started up the street; that the mule had backed the wagon from the west side towards the east side of the street, and close to the car as it was passing, something like 2 feet or 18 inches from the car as it passed the wagon; that at this time, when the car was closest to the wagon, he was between the wagon and the car, and the plaintiff was from 16 to 20 feet from the wagon and down the street near the west sidewalk, on the west side of the passing car; and that she was in that position the last time he saw her. The plaintiff's witness Kosky testified that when the mule began to back the wagon the plaintiff ran down the street on the west side, and then across the street towards the east, and struck the car near the front right-hand corner. The evidence further tended to show that the collision with the car caused the feme plaintiff to fall, and the wheels on one side passed over her feet. The injury was received on the west rail of the track, 36 to 40 feet from the point where the plaintiff was at the wagon when the mule began to move.

The defendant's testimony was to the effect that, as the car approached, the mule showed signs of restiveness and turned somewhat towards the west sidewalk. The motorman then had his car under control, and the plaintiff was 12 or 15 feet from the car track and near the rear end of the wagon. About the time the car was passing the mule and wagon, the plaintiff started down the street on the west side near the curbing, and after having gone some distance she stopped a moment, and then turned and ran diagonally across the street towards the car track, where she collided with the side of the car just back of the front steps, was knocked down, and injured. The motorman testified that he did not see the plaintiff, after he passed the wagon, until after she ran into the side of the car and was falling. When he passed her, she was standing 12 feet from the car, and, seeing that everything was all

right, he looked ahead and did not see the plaintiff again until a lady screamed and attracted his attention. He then looked around and saw her falling. He also stated that it was 4 or 5 feet from where he was standing on the front platform to the point where she struck the car. The evidence further tended to show that the street, at the place where the accident occurred, was 26 feet wide between the curbs; the railway track, which was laid on the east side of the street, about 1% feet from the east curbing, was about 5 feet wide; and the car projected over the track about 1 foot at the widest point. The evidence also tended to show that the plaintiff was in no actual danger after she moved away from the wagon and started to run, either diagonally across or straight down on the west side, and then diagonally across the street towards the car, where she was injured. Mrs. Fisher testified: "I saw the car coming down the street, about Mr. Heston's house. As it got a very little closer the mule began to shy at something, or to throw up his head and shy a little. The man stepped around the side of the wagon and took hold of the bridle. By that time the car was very close to them. He had slowed up some, was not running fast, and Mrs. Crenshaw started to leave the wagon. She turned from the wagon and went down the street almost opposite to my father's gate. I thought she was coming into my lot, and when I saw she turned towards the car I screamed; but before I could attract her attention she had reached the car, and the handle on the body of the car, back of the platform, struck her left shoulder and threw her back from the car, and she struck on her right side." She further stated, in substance, that the plaintiff was running with her head down, and just as she reached the car she looked up, and threw up her hands, and said, "Oh, God!" and at that moment the car struck her and she fell on the ground. When she turned near the gate, she went rather diagonally towards the car, or southeast. At the time she turned suddenly, she was the width of the street from the car (about 15 feet), and the car was then about opposite to her. The witness screamed when the plaintiff turned and started towards the car, but she reached the car before the witness could attract her attention. The evidence tended to show that the plaintiff was very much frightened as she left the wagon and went down the street.

The defendant in apt time moved, under the statute, to dismiss the action. The motion was overruled, and the defendant excepted. The jury returned a verdict for the plaintiff, and, judgment having been entered thereon, the defendant appealed.

Julius C. Martin and Chas. A. Webb, for appellant. Frank Carter and Moore & Rollins, for appellees.

WALKER, J. (after stating the case). The counsel for the defendant abandoned all assignments of error, except those which raised the question whether, upon the evidence, construed most favorably for her, the plaintiff is entitled to recover. The testimony is voluminous, and we have held the case over from the last term in order that we might give it a most careful examination. There are few conflicts in it, and they are slight and not very material. When every disputed question of fact is resolved in favor of the plaintiff, it does not seem to us that she has made out a case. Indeed, it is clear to us that she has not, whether we consider the facts with reference to any omission of duty on the part of the defendant, or with regard to her own negligence as the efficient and proximate cause of the injuries received. No fault is imputed to the motorman in the management of his car up to the time that the plaintiff left the wagon and was apparently out of any danger from any apprehended conduct of the mule. Indeed, all of the evidence shows, and the case was argued upon that theory here, that the motorman had slowed down by shutting off the power and applying the brakes, so that he had the car completely under his control, and the speed had been so reduced that it was moving very slowly as the point of danger, from the backing of the mule, was being passed. He acted promptly, and showed every disposition to avoid an accident. Nor do we find any evidence in the case which tends to show that he relaxed his efforts in this respect at any time before the plaintiff was injured. We are not permitted to decide upon mere conjecture, or to guess how or by what combination of circumstances an injury may have been caused by the defendant's negligence. The burden is always on the plaintiff to show by a preponderance of the evidence that the defendant committed a negligent act and that it was the proximate cause of the injury. The two facts must coexist and be established by the clear weight of the evidence before a case of actionable negligence is made out. Brewster v. Elizabeth City, 137 N. C. 392, 49 S. E. 885. This kind of proof, which must be forthcoming in order to establish the issues in favor of the plaintiff, was considered recently by us in Byrd v. Express Co., 139 N. C. 273, 51 S. E. 851, where we said: "There must be legal evidence of the fact in issue, and not merely such as raises a suspicion or conjecture in regard to it. The plaintiff must do more than show the possible liability of the defendant for the injury. He must go further, and offer at least some evidence which reasonably tends to prove every fact essential to his success." The rule upon this subject is stated in another form by Justice Douglas, for the court, in Spruill v. Insurance Co., 120 N. C., at page 147, 27 S. E. 39, as follows: "The action of the judge (in directing a verdict) can be sus

tained only under the doctrine, firmly es tablished in this state, that where there is no evidence, or a mere scintilla of evidence, or the evidence is not sufficient, in a just and reasonable view of it, to warrant an inference of any fact in issue, the court should not leave the issue to be passed upon by the jury, but should direct a verdict against the party upon whom the burden of proof rests." Judge Gaston thus stated it in Cobb v. Fogalman, 23 N. C. 440: "Although the boundary between a defect of evidence and evidence confessedly slight be not easily drawn in practice, yet it cannot be doubted that what raises a possibility or conjecture [as to the existence] of a fact never can amount to evidence of it." State v. Vinson, 63 N. C. 335. The rule as laid down in Spruill v. Insurance Co. is the one stated in Wittkowsky v. Wasson, 71 N. C. 451, wherein Justice Rodman says: "There must be evidence from which [the jury] might reasonably and properly conclude that there was negligence." To the same effect are State v. Powell, 94 N. C. 968, and State v. Satterfield, 121 N. C. 558, 28 S. E. 491. All the cases cited approve the rule as formulated by Justice Maule in Jewell v. Parr, 13 C. B. 916 (76 E. C. L. 916), as follows: "The question for the judge is, not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established." Ryder v. Wombwell, L. R. 4 Exch. 32. This rule is not intended, as said by Justice Douglas in Spruill v. Insurance Co., to interfere with the rightful province of the jury to pass upon the weight of the evidence, but it assumes that the determination of its "character and legal effect" belongs to the court, and requires that this preliminary question be first decided before the evidence is submitted to the jury. The matter is discussed by Justice Connor for the court, with a full citation of the authorities, in Lewis v. Steamship Co., 132 N. C. 904, 44 S. E. 666.

In whatever form the rule may be expressed, we do not think the plaintiff has satisfied its requirement in this case. We may well assert that there is no evidence at all, not even a scintilla, and certainly none when the testimony is considered "in any just and reasonable view of it," to warrant an inference of negligence on the part of the defendant. All of the evidence, on the contrary, tends to show that the danger to the plaintiff from the backing of the mule had passed when the motorman released the brakes, and nothing, we think, occurred after that time which required that he should keep an eye on the plaintiff to prevent any harm coming to her from a collision with the car. She was proceeding down the street, whether straight down or diagonally, makes no difference. As her position was in fact a safe one; as she was in possession of her faculties, and of her senses of sight and hearing, and in full view of the car, which she knew was passing; as

it was daytime, and her vision was unobstructed; as there were places of safety on the opposite side of the street from the railway track, or the west side, if there was, in fact, any danger and she was seeking a place of safety; and as there was no conceivable reason why she should have crossed the track just at that time-the conductor had the right to assume that she would keep in the safe way, and not deliberately walk into the car, as she did, or even attempt to cross the track in front of it, if such had been the case. Every reason appears in this case why he should have been thus impressed by the then situation. There is no evidence, within the rule we have already stated, that he saw her at the time she attempted to cross the track and walked against the car. He was standing on the front platform, about four feet in front of her, when she walked against the car. Just as the plaintiff was stricken, either by the side of the car or by the handhold which is fastened to the side, he heard a lady scream, when he looked back and saw the plaintiff falling. The car was then stopped in a brief space of time and distance. The motorman knew, or must have known, that the plaintiff was fully aware of the presence of the car, because she had hailed him when danger first appeared and an accident seemed to be imminent; but, knowing also that the danger had passed, and that the apple vender had left with his mule, leading him up the street in an opposite direction from the plaintiff, he had a right to suppose that the plaintiff, being apparently and really able to do so, would take care of herself, and, having successfully escaped from one danger, would not walk into another so easily discernible by a mere glance of the eye. This court has so treated the question in passing upon a similar state of facts. Matthews v. Railroad, 117 N. C. 640, 23 S. E. 177; Markham v. Railroad, 119 N. C. 715, 25 S. E. 786; Pharr v. Railroad, 133 N. C. 610, 45 S. E. 1021; Meredith v. Railroad, 108 N. C. 616, 13 S. E. 137; Syme v. Railroad, 113 N. C. 558, 18 S. E. 114; High v. Railroad, 112 N. C. 385, 17 S. E. 79; Parker v. Railroad, 86 N. C. 222; Doster v. Railway, 117 N. C. 651, 23 S. E. 449, 34 L. R. A. 481. See, also, Hall v. Street Railway Co., 168 Mass., at page 463, 47 N. E. 124. The fright of the plaintiff at the time the mule shied, if it continued to the time of the accident, was not caused by any negligence of the defendant, and is in no way attributable to any wrong committed by it. It is something for which the defendant cannot be held responsible. Dummer v. Railroad, 108 Wis. 589, 84 N. W. 853.

His honor was therefore right in charging the jury that the "doctrine of sudden peril" has no application to this case, and that the motorman was not bound to anticipate that the plaintiff, whether frightened or not, would leave a place of safety, or, having left it, would go into a place of danger,