SMATHERS v. SPROUSE. it, under such circumstances of the situation as was known to the defendant, and in time for him to have moved out of danger, then the defendant performed its duty to the plaintiff, and the answer to the first issue should be 'No.'" The Court further told the jury that the engineman had a right to assume, if he saw plaintiff on or near the track, that he would remove to a place of safety after the whistle had been blown reasonably sufficient under the circumstances to give proper warning. The charge of his Honor is very full, and presented to the jury with impartiality and ability the different phases of the evidence and the contentions of both parties. The matter is plainly one of fact, and the findings of the jury are supported by evidence. No Error. SMATHERS, receiver, v. W. J. SPROUSE et al. (Filed 22 May, 1907). Judgment-Collateral Attack-Presumption.-Upon motion to revive a dormant judgment, the defendant cannot show aliunde that no service of process had been originally made upon him. The presumption that he was properly a party is conclusive until removed by a correction of the record itself in a direct proceeding for that purpose. MOTION to revive the above-entitled dormant judgment, heard on appeal from the Clerk by O. H. Allen, J., at September Term, 1906, of BUNCOMBE County Superior Court. From the order of his Honor affirming the judgment of the Clerk the defendants appealed. Charles N. Malone for plaintiff. Adams & Adams and W. P. Brown for defendants. BROWN, J. Upon the hearing before the Clerk, defendants offered to show that they had not been served with sum SMATHERS Vv. SPROUSE. mons in the original action. To this the plaintiff objected and the Clerk sustained the objection, ruling that the judgment could not be attacked in this way in this proceeding, and ordered and adjudged that execution issue. There is no error in such ruling, and his Honor very properly affirmed it, as it is supported by many uniform precedents. A void judgment may be regarded as a nullity and attacked whenever it may come in question, but it must appear affirmatively upon the judgment record that it is void. If the summons and record in this case, upon being produced, disclosed that there had been no service upon the defendants and no appearance by them or by any one in their behalf, then the judgment is void on its face, and the defendant's position would be correct, that it could be attacked and its void character shown in response to the notice to show cause why execution should not issue. Doyle v. Brown, 72 N. C., 393. The original record in this case is not fully set out in the transcript of appeal, but we assume from the briefs that it does not appear affirmatively upon the face of the record that the defendants were not duly served with process. As we understand the matter, the defendants claim the right to show aliunde, upon the hearing of the motion, that no service was actually made. This cannot be allowed. Where it appears from the record that a person was a party to an action, when in fact he was not, the legal presumption that he was properly a party is conclusive until removed by a correction of the record itself by a direct proceeding for that purpose. Summer v. Sessoms, 94 N. C., 371 (377); Doyle v. Brown, 72 N. C., 393; Spence v. Credle, 102 N. C., 75; Card v. Finch, 142 N. C., 145. Affirmed. FURNITURE Co. v. EXPRESS Co. HARPER FURNITURE COMPANY v. SOUTHERN EXPRESS COMPANY. (Filed 22 May, 1907). 1. Evidence Judicial Notice. The courts will take judicial notice of prominent towns in this State, especially county seats, their accessibility by railroads connecting them with trunk lines of the country; also of the distance of prominent business centers of other States, their accessibility by railway, and the time between them by the usual routes and methods, to the extent that the facts are sufficiently notorious to make their assumption safe and proper. (Walker v. Railroad, 137 N. C., 163, cited and distinguished). 2. Same. When it appears that goods shipped by express from the city of Erie, Pa., to the town of Lenoir, N. C., have been on the road for a period of fourteen days, the courts will take judicial notice of the time required for shipment between the two points so far as to hold that there has been a prima facie wrongful or negligent breach of the contract of carriage. 3. Common Carriers - Negligence Presumptions. When there arises a presumption of actionable negligence against one of several connecting lines of carriers by reason of a wrongful delay of transportation of goods, such presumption is against any one of them in whose custody the goods are shown to have been, after the delay occurred, and the burden of proof is upon it to rebut the presumption. (The difference between "prima facie," "presumptions" and "burden of the issue," distinguished). CIVIL ACTION to recover damages for delay in shipment of goods by express, tried before Bryan, J., and a jury, at November Term, 1906, Superior Court of CALDWELL County. From judgment of nonsuit plaintiff appealed. G. F. Harper, for plaintiff, and being the only witness examined, testified as follows: "I am a member of the firm trading under the name of The Harper Furniture Company, and am general manager of the same. On 28 October, 1905, I received a through bill FURNITURE Co. v. EXPRESS Co. of lading by mail from Erie, Pa., to Lenoir, N. C., issued by the Adams Express Company, as shown on the face of the bill, and which showed that on 26 October, 1905, a certain engine shaft and crank had been delivered to the said Adams Express Company by the Erie City Iron Works, of the said city of Erie, Pa., and from which the plaintiff had ordered the said shaft and crank a few days before. Said bill of lading showed on its face that the shaft was to be delivered in Lenoir, N. C., by the company issuing it and its connecting lines. The shaft did not reach Lenoir until 9 November, 1905. Upon its arrival in Lenoir it was delivered to me by the agent of the defendant Southern Express Company, and I paid him the sum of $26.50 as the freight charges for the transportation over the entire line from Erie to Lenoir. During all the time it was on the road, and before, our factory was standing idle, as we could not turn a wheel without the shaft. We made, both before the shaft broke and after the repairs were made, $30 per day net profit on the output of the mill, and we could have made the same had we received the shaft in proper time. We were forced, also, to turn down orders which we could have filled at a profit of $300 had the machinery been received in proper time." Cross-examined: "I have no means of knowing where the delay occurredwhether on the line of the initial company or on that of the defendant company. I do not know whether there were traffic arrangements between the two companies further than is shown by the bill of lading, which was a through bill from Erie to Lenoir, and from the fact that I paid the freight for transportation to the agent of the defendant company at Lenoir, N. C." At the close of the testimony defendant moved to dismiss the cause as on judgment of nonsuit. The motion was allowed, and plaintiff excepted and appealed. FURNITURE Co. v. EXPRESS CO. Jones & Whisnant for plaintiff. W. C. Newland and John A. Barringer for defendant. HOKE, J., after stating the case: It is said by McKelvey, in his work on Evidence, that there is a class of facts of which a court may take judicial notice in its sound legal discretion, and supporting them is the single principle of common notoriety, the vital question being whether sufficient notoriety attaches to any particular fact as to make it safe and proper to assume its existence without proof. McKelvey on Evidence, pp. 33 and 34. Speaking further of this class of facts, the same author says: "In every case the particular circumstances must govern, and no general rule can be laid down. The decisions in particular cases are very useful, as they serve to furnish illustrations by way of analogy. They are not useful as precedents, inasmuch as the same facts may, at a different time and under different circumstances, be entitled to different treatment." Speaking to the same principle, Professor Wigmore, in his work on Evidence, sec. 2580: "Applying the same general principle (as to judicial notice), especially in regard to the element of notoriousness, courts are found noticing from time to time a varied array of unquestionable facts ranging throughout the data of commerce, industry, history and natural science. It is unprofitable as well as impracticable to seek to connect them by generalities and distinctions, for the notoriousness of a truth varies with differences of time and place. It is even erroneous in many if not most instances to regard them as precedents. It is the spirit and example of the rulings, rather than their precise tenor, that is to be useful in guidance." And in section 2581: "Among the common instances under this miscellaneous class are the facts of time, season and distance; though here, also, the quality of notoriousness will naturally vary with the place |