KEATON V. BANKS ET AL.

[10 IREDELL'S LAW, 381.]

COURT IN WHICH JUDGMENT IS RENDERED MAY VACATE IT, on motion, at any time, upon parol proof that it was entered irregularly and not accord. ing to the course of the court.

JUDGMENT RENDERED AGAINST PARTY NOT IN COURT IS VOID.

MOTION to vacate a judgment.

The court refused to hear the parol evidence referred to in the opinion, and the plaintiff appealed.

Heath, for the plaintiff.

Ehringhaus, for the defendants.

By Court, NASH, J. We do not concur in the opinion of the court below. The error seems to have originated in not adverting to the difference between receiving parol testimony to impeach a judgment collaterally, and to receiving it on a motion to vacate it, made in the court where the judgment is. In the former case, it is certainly incompetent; in the latter, it is competent. Upon the appeal from the judgment of the county to the superior court, the trial was to be had in the latter, as it was had in the former. And, if the evidence offered to his honor was such as would have been proper in the county court, it ought to have been admitted by him. In the writ, William F. Keaton is called the guardian ad litem of Benjamin, and the record is upon its face regular, according to the course of the court. The service of the writ appeared to have been admitted by William F. Keaton; the court must have then considered the infant Benjamin in court. The fact was otherwise. According to the evidence offered, William F. Keaton never was appointed the guardian of the infant, and never consented to be so, and did not defend the action. If this was so, the judgment was in reality irregular, and contrary to the course of the court. If an action had been brought to recover the property sold under it, however, evidence could not have been received to impeach it. It was the judgment of a court having jurisdiction of the matter. But, according to the fact, Benjamin F. Keaton was no party to the proceedings either by himself or his guardian. And tho judgment is void, for there can be no judgment against a person not in court: Den ex dem. White v. Albertson, 3 Dev. L. 242 [22 Am. Dec. 719]. The question then presents itself, Could the county court set aside this judgment at a term subsequent to that at which it was rendered, by petition or motion, and receive parol evidence to show the truth of the transaction? It apper

tains to every court, as a necessary part of its functions, to set aside an irregular judgment. The ends of justice often require it: Bender v. Askew, Id. 152 [22 Am. Dec. 714]. In that case, it is stated by the court that the power so to do is not confined to the term in which the judgment is rendered. The judgment against Bender was rendered at January term, 1838, and set aside at August term, 1839.

The first case presenting the question is that of Pearson v. Nesbit, 1 Dev. L. 135 [17 Am. Dec. 569]. There the judgment was obtained at fall term, 1820, and the motion, on affidavit, not filed until fall term, 1827, when the judgment was vacated because Jesse A. Pearson was both plaintiff and defendant. In Crumpler v. Governor, Id. 52, a final judgment obtained at one term of the court, was at a subsequent one, on motion founded on affidavit, set aside for irregularity. In all these cases the motion was made in the court, where the judgment was, and directly upon it: Tidd's Pr. 614; Bing. on Judgment, 21, 22. It has been insisted, however, that the original case continued in court two terms, before the judgment was entered against Benjamin Keaton, and the court thereby recognized William F. Keaton as his guardian, and Benjamin was in court. For this position the case of Den ex dem. White v. Albertson, 3 Dev. L. 242 [22 Am. Dec. 719], was cited. The attempt there was to impeach the judgment collaterally.. Judge Henderson put it upon that ground exclusively. It is true that the case was in court the time specified, and the record does speak of William F. Keaton as the guardian of Benjamin. But on motion to vacate the judgment, as irregular, the court is not precluded from inquiring into the truth, whether William F. Keaton was the guardian of Benjamin, and whether the latter did appear or not: Bender v. Askew, Id. 152 [22 Am. Dec. 714]. The vacating such judgments proceeds upon the grounds, "that a judgment has been signed upon the record, which was not in fact the judg ment of the court, which the court ought not to have given, and which the plaintiff or his attorney knew the court would not give or allow."

The judgment of the superior court is reversed and the case remanded.

Ordered accordingly.

SETTING ASIDE JUDGMENT: See Bank of Monroe v. Widner, 43 Am. Dec. 768, note 772; Dial v. Farrow, 36 Id. 267, note 268; Pendleton v. Galloway, 34 Id. 434; Winslow v. Anderson, 32 Id. 651; Binsse v. Parker, 23 Id. 720; Bender v. Askew, 22 Id. 714, note 717; Bank of Carlisle v. Hopkins, 15 13

113; Morgan v. Hays, 12 Id. 147, note 148. The principal case is cited in the following cases to the point that an irregular judgment may be set aside at any time by the court in which it was rendered: Williams v. Beasley, 13 Ired. L. 114; Dick v. McLaurin, 63 N. C. 186; Mason v. Miles, Id. 565; Cowles v. Hayes, 69 Id. 410.

JUDGMENT AGAINST PARTY WITHOUT NOTICE IS VOID: See Flint River Steamboat Co. v. Foster, 48 Am. Dec. 248, note 270, where this subject is discussed at length; Dearing v. Bank of Charleston, Id. 300, note 320.

HERRING V. WILMINGTON & RALEIGH R. R. Co.

[10 IREDELL'S LAW, 402.]

WHAT AMOUNTS TO NEGLIGENCE IS A QUESTION OF LAW.

WHERE SLAVE WHILE ASLEEP ON RAILROAD TRACK IS RUN OVER and killed by a train running at the usual speed, the law will not attribute negligence to the engineer because he does not act on the assumption that the slave has lost his faculties by being drunk or asleep. He has a right to presume that the slave, being a man, will get out of the way; and if, after he gets near enough to see that the slave is drunk or asleep, he uses due care and precaution to avert the accident, the railroad com. pany will not be liable to the owner of the slave.

CASE to recover damages of the defendants for the negligent management of their cars, whereby one of the plaintiff's slaves was killed and another badly wounded. The facts are stated in the opinion.

Strange and D. Reid, for the plaintiff.

W. Winslow, for the defendants.

By Court, PEARSON, J. The gravamen of the action is negligence on the part of the defendants through their agent, and the question is, Was there evidence of negligence?

It was proven, that the cars ran over two negroes of the plaintiff, killing one and injuring the other: and the plaintiff insists, that, from this fact, the law implies negligence. The position is not tenable, that whenever damage is done, the law implies negligence. The bare statement of the proposition shows its fallacy. The case of Ellis v. Ports. & Roan. R. R. Co., 2 Ired. L. 138, and Piggot v. East. Co. Railroad, 54 Eng. Com. L. 229, were relied on as supporting this position. In both cases fire was communicated to the property of the plaintiffs in the one case, a barn-in the other a fence was set on fire by sparks from the cars. It was proven in both cases, that the cars had been running for a long time without doing any damage, and things remaining in the same condition, the

fact, that fire was communicated on a particular occasion, was properly held to be prima facie evidence that it was the result of negligence. Judge Gaston, in the case of Ellis, lays down the rule in these words: "Where the plaintiff shows damage resulting from the act of the defendants, which act with the exertion of proper care does not ordinarily produce damage, he makes out a prima facie case of negligence, which can not be repelled, but by proof of care, or some extraordinary accident, which makes care useless." In other words, as the cars had been running under the same circumstances time after time without setting fire to the fence, if on a particular occasion the fence is set on fire, it must be ascribed to negligence, unless it can be accounted for, as by showing there was a sudden gust of wind, or some other unusual cause. In this case, the cars had been running for years without injuring a negro, because no negro had fallen asleep upon the track. That was itself an unusual circumstance, and repels any inference of negligence, from the mere fact, that damage was done, and therein this case differs from the cases of the fence and the house, which had remained stationary. The question of negligence then is open for inquiry.

What amounts to negligence is a question of law. Admitting the facts to be as contended for by the plaintiff, there was no evidence of negligence. The cars were running at the usual hour and at the usual speed, not through a village, or over a crossing place, or turning a point, but upon a straight line, where they could be seen for more than a mile. The negroes might have been seen at the distance of half a mile. Whether the engineer saw them or not until he was too near to stop, does not appear. There is no evidence that he was not in his place and on the lookout. It can not be inferred from the fact, that he made no effort to stop until he got within twenty-five or thirty yards of the negroes; for that is entirely consistent with the supposition, that he had seen them for half a mile; because, seeing them to be man, he naturally supposed they would get out of the way before the cars reached, and might well have continued under this impression, until he got near enough to see, that they were either drunk or asleep, which he was not bound to foresee, and his being then too near to stop, so as to save them, was their misfortune, not his fault.

If there had been a log of wood on the track, running over it would amount to negligence; for, if the engineer did not see it, there was negligence in not keeping a lookout, and if he did see it, there was, negligence in not stopping in time, as wood

has neither the instinct of self-preservation nor the power of locomotion. If there had been a cow on the track, the case would not be so clear, for the animal has both the instinct of self-preservation and the power of locomotion; but, on the other hand, it is known, that such animals lose their natural appre hension of danger by frequently seeing and hearing the cars. But as the negroes were reasonable beings, endowed with intelligence, as well as the instinct of self-preservation and the power of locomotion, it was a natural and reasonable supposition, that they would get out of the way, and the engineer was not guilty of negligence, because he did not act upon the presumption that they had lost their faculties by being drunk or asleep. If a deafmute, while walking on the track, be unfortunately run over, it would certainly not be negligence, unless it was proven that the engineer knew the man and was aware of his infirmity. If the cars are to be stopped, whenever a man is seen walking on the road, lest perchance he may be a deaf-mute, and whenever negroes are seen lying on the track, lest they may be drunk or asleep, a knowledge of this impunity would be an inducement to obstruct the highway and render it impossible for the company to discharge their duty to the public, as common carriers.

We concur with his honor as to the competency of the captain as a witness for the defendants. He was in no wise responsible. But we do not concur in the opinion, "that the fault of his slaves in going to sleep on the road at the time and under the circumstances stated by the witnesses was imputable to the plaintiff." No fault is imputable to the owner for not preventing his negroes from going about on Sunday and lying down where they please, nor is the amount of care required of the defendants thereby "diminished." For this reason, we should be compelled to grant a venire de novo, if this instruction could have influenced the decision of the case. But, as the plaintiff made out no evidence of negligence, this error was immaterial.

For the same reason it is unnecessary to notice the cases cited in the argument, as to the damage done, when there was negligence on both sides. We concur in the opinion, that, when this is the case, neither party can recover, unless one be guilty of wanton injury or gross neglect, which is much the same thing; for, if both are in equal fault, if one can recover so can the other, and thus there would be mutual faults and mutual recoveries, which would contradict the saying, "that law is the perfection of reason."

Judgment affirmed.