comes the strongest kind of an intimation that in his opinion the jury should convict. State v. Green, 117 N. C. 695, 23 S. E. 98; Same v. Kiger, 115 N. C. 746, 20 S. E. 456; Same v. Christmas, 101 N. C. 749, 8 S. E. 361. If, after verdict, the judge thinks, notwithstanding the respect which is due to the unanimous opinion of 12 impartial men, that the interests of justice demand a new trial, he is vested with the discretion to grant it.

But this is very different from holding as a matter of law that there is no evidence to go to the jury, and a very different matter from this court, out of sight and hearing of the witnesses and surroundings of the trial, holding as a matter of law that there was no evidence to go to the jury, when the jury found that there was sufficient to find the prisoner guilty, and a learned and just judge has not only held as a proposition of law that there was enough evidence to go to the jury, but had so little doubt about its weight that he refused, as a matter of discretion, to set the verdict aside. Besides, it must be remembered that on the trial below the presumption is in favor of the innocence of the prisoner, which must be overcome, by proof satisfying the jury beyond a reasonable doubt, but on appeal there is no such presumption of fact, but, on the contrary, there is a presumption of law that the judge below ruled correctly; and, unless this is overcome, or if the court is in doubt, his judgment must stand. There have been cases where there was no evidence sufficient to submit the case to the jury; but when the judge has held otherwise, and the jury has convicted, and the judge has refused, even as a matter of discretion, to set the verdict aside, it must be a very bald case that should constrain a court of appeals to hold that the jury convicted and the judge sustained the verdict without any evidence. If the evidence is merely such that this court, sitting as jurors, would not have convicted, we are not authorized to interfere. To do so would be to invade the province of the jury and of the judge below as well, all of whom are presumed competent and impartial in the discharge of the duties confided to them by the constitution and laws. We only correct errors of law, we have no authority to correct a finding of fact by a jury. Now, was there an entire absence of evidence in this case, "nothing beyond a mere scintilla"? It was in evidence that on June 4, 1896, at a shanty at a sawmill in Caldwell county, Walter Moore and Dallas Bowman were killed by an explosion of dynamite which had been placed under that part of the shanty where stood the bed in which the deceased slept. As a rule, no other persons remained in the mill yard at night except these two. The mill was to have been removed the next day. There was evidence that there was no dynamite in the shanty, or about it, on the day of the explosion, and none in the possession or control

of the deceased; that the prisoner, Simon Gragg, lived in a house about three-fourths of a mile through the woods from the shanty, and a mile and a half from it going round the public road. The prisoner was overseer of the public road, and just prior to the explosion admitted having 32 or 33 joints of dynamite. He had used dynamite frequently, and knew how to use it. The sheriff searched his house soon after the explosion, and found only 25 joints of dynamite. A witness testified that on the night after the explosion he was at the prisoner's house, and heard his brother Tom ask him whom he had been letting have dynamite, and the prisoner replied, "No one;" and Tom said that the day of the explosion he had seen five or six joints out of the box, lying near it, with a fuse and cap on one of the joints. The evidence was that the prisoner kept his dynamite under his bed. There was evidence that the prisoner and Walter Moore, one of the deceased, had quarreled a few months before, and were heard to curse each other a short time before the explosion; that Dallas Bowman, the other deceased, had come into the neighborhood a few months before; that a deep enmity sprung up between the prisoner and Bowman, and that the prisoner was engaged to be married to a widow in the neighborhood, but he became so jealous of Bowman that she discarded him, and the prisoner said that if she put him off on account of Bowman she should never live with him in this country; that about 10 days before the explosion the prisoner asked Bettie Baird about the relations between the widow and Bowman, and said, if "Alice quit him for Bowman, there would be the damnedest time this country ever knew"; that on the Monday just before the killing he was inquiring where Bowman boarded; that the mill was on the prisoner's land, and he had stipulated, when allowing it to be put there, that Bowman should not be employed there. Two or three months before the killing he had waited along the road for Bowman, and inquired if he were coming. It was also in evidence that between the prisoner's house and the mill a recent track was discovered leading through the woods from the house in the direction of the mill, with occasional impressions, especially distinct on a log about 100 feet long. The track was a shoe No. 8 or 9, the size the prisoner wore. Some witnesses testified that the conduct of the prisoner on the ground the day after the killing was peculiar, and calculated to arouse suspicion. He was pale, preoccupied, and stood apart from others. When the sheriff and witness started through the woods to look for tracks, the prisoner said they need not do that, for the man who did this was smart enough to cover up his tracks; and to another he said that the man who did this came around the road. The morning after the explosion he was plowing in a conspicuous place on the roadside, before sunup, about a mile

from his house, which was a very unusual time for him to be at work. There was evidence that, going to the mill, soon after being told of the explosion, he was so agitated that he had to stop once or twice, and said he did not believe he would be able to go there. There was some evidence contradictory of his bearing at the house after the explosion, but in considering whether there is any evidence it is only necessary to consider that against the prisoner. There was no evidence offered for the defense. If this case could be submitted to this court as a jury upon this evidence, we should be at a great disadvantage compared to the jury and judge who tried it, in that we have not had the presence and bearing of the witnesses upon the stand, the knowledge of witnesses and the surroundings which the jury had, nor the same argument of counsel. The reproduction of evidence upon paper is a poor substitute. But it is not for us to say whether upon this evidence, if sitting as jurors, we would convict. We have no such power. Nor is it for us to say whether, sitting as the trial judge, we would not have granted a new trial as a matter of discretion. That power and duty are confided to him, and not reviewable. The sole power confided to us is to declare as a proposition of law that the presumption of the correctness of the ruling below is overcome, and that there was plainly no evidence to be submitted to a jury. There was motive-strong motive-and bitter threats shown; the killing by dynamite; the fact that the prisoner had dynamite, and seven pieces in his possession disappeared just at the time of the killing, and he made no effort to account for it; the recently made track leading from his house, through the woods, to the place of the homicide, a shorter way than around the road, and that the track was the size of the prisoner's; and the remarks of the prisoner to discourage hunting for the tracks, and his agitation. No one was sufficient, but, taken together, the whole was enough evidence to be submitted to the jury. That these circumstances could not be declared, on appeal, no evidence, would seem plain. Whether they were sufficient evidence was for the jury. There are many cases in which this court has refused to hold less evidence than this to be no evidence. State v. Green, 117 N. C. 695, 23 S. E. 98; Young v. Alford, 118 N. C. 215, 23 S. E. 973; State v. Kiger, 115 N. C. 746, 20 S. E. 456; Same v. Chancy, 110 N. C. 507, 14 S. E. 780; Same v. Christmas, 101 N. C. 749, 8 S. E. 361; Same v. Powell, 94 N. C. 965; Same v. Atkinson, 93 N. C. 519; Same v. White, 89 N. C. 462; Brown v. Kinsey, 81 N. C. 245; State v. Waller, 80 N. C. 401; Same v. Patterson, 78 N. C. 470; Same, v. Allen, 48 N. C. 257; Sutton v. Madre, 47 N. C. 320; Cobb v. Fogleman, 23 N. C. 440; and many others. The institution of the jury has been preserved from encroachment at this term by many decisions upon the application of chapter 109

of the acts of 1897. This is an encroachment upon its prerogatives upon the criminal side, but not less to be deplored upon that account.

MONTGOMERY, J., concurs in the dissenting opinion.

McGHEE v. BREEDLOVE et al. (Supreme Court of North Carolina. May 17, 1898.)

COURTS-ACTION ON CONTRACT-LANDLORD'S LIEN ON CROPS.

1. An action by a landlord for possession of the crop is not an action on the contract by which the plaintiff gained title to the property, and he may sue to recover the property in a court that would not have jurisdiction of an action on the contract.

2. Code, § 1754, provides that lessors of land for agricultural purposes, unless otherwise agreed, shall be deemed to be in possession of all crops raised, until the rent shall be paid. Held, that a lessor, who agreed to take a portion of the crop, or a stated sum of money, and had received a part of the rental in money, would own the crop until his rent was paid.

Appeal from superior court, Granville county; Adams, Judge.

Action by J. Y. McGhee against A. F. Breedlove and another. From a judgment for defendants, plaintiff appeals. Reversed.

R. C. Gulley and N. Y. Gulley, for appellant. Edwards & Royster and A. A. Hicks, for appellees.

FURCHES, J. The plaintiff rented his farm in Granville county to the defendant Breedlove for the year 1895, for which he says, in his complaint, that said defendant was to pay him one-fourth of the crops raised thereon; that one-fourth of said crop, in his opinion, was worth $400; that one of the crops raised on said farm was tobacco; and that the defendant Breedlove, without paying the rent as he contracted to do, sold said tobacco to the defendants Hunt & Williams, amounting to $700. The plaintiff claims that, under the landlord and tenant act (section 1754 of the Code), he is the owner of the crop (in this case, the tobacco) until his rents are paid, and entitled to the possession thereof. He therefore demands the possession from the defendant Breedlove, and the defendants Hunt & Williams, who purchased the tobacco from Breedlove.

On the trial the plaintiff, as a witness, testified that the defendant Breedlove was to pay him one-fourth of the crop, or $200, and that defendant Breedlove had paid him $35. Upon this testimony of the plaintiff, defendants moved to nonsuit the plaintiff, upon the ground of a want of jurisdiction. The court sustained this motion, nonsuited the plaintiff, and he appealed. In this judgment there was error. The court and defendants' counsel seemed to treat this as an action on contract, an action of debt,-and relied on Hargrove v. Harris, 116 N. C. 418, 21 S. E.

916.

In this mistake lies the error that led to the judgment of nonsuit. This is not an action upon contract, but an action for the possession of the tobacco. It is true, the plaintiff's right to the tobacco grew out of the contract of rental to the defendant Breedlove; but the action is not to enforce that contract, but to recover possession of property belonging to plaintiff, resulting from said contract. A. buys a horse from B., for which he pays B. $100; and B. is to deliver the horse to A. at the end of six months. But B., instead of doing so, sells him to C.; and A. brings his action for the horse, as the title to the horse was the result of his contract with B.; but his action for the horse is not to enforce that contract. Indeed, it seems difficult to understand how this action could be considered an action on the contract with Breedlove, when the defendants Hunt & Williams, who bought the tobacco, are also made parties defendant. It makes no difference, so far as the question of jurisdiction is concerned, whether the defendant Breedlove was to pay $200, and had paid $35, as the rental of said farm, or was to pay one-fourth of the crop, as the statute made the plaintiff the owner of the crop until the rent was paid. So Hargrove v. Harris is not in point. If plaintiff had brought his action for $200 due by contract, as the rental of this farm for 1895, and had. taken out claim and delivery proceedings, Hargrove v. Harris would have been in point, and authority to sustain the judgment of the court. There is error in the judg ment of the court dismissing plaintiff's action, which will be restored to the docket for trial. Error.

1. Under an order granting a rehearing as to certain questions therein specified, no other question can be considered.

2. Before a judgment of the supreme court can be set aside on a rehearing, the alleged error therein must be clearly pointed out, as every presumption is in favor of such judgment.

Petition for rehearing. Dismissed.
For former opinion, see 24 S. E. 782.

DOUGLAS, J. This is a petition to rehear the case decided at the February term, 1896, of this court, and reported in 118 N. C., at page 11, 24 S. E. 782. The indorsement of Mr. Justice Avery upon the petition is as follows: "Order upon Petition to Rehear. The issues of law involved in this controversy were carefully considered when the case was before the court upon appeal; but, after reviewing the record, I am now of opinion that there should be a rehearing upon the questions-First, whether the judgment of the court below was erroneous in

the allowance of commissions to the defendant, Cobb; second, whether the defendant, Cobb, was properly chargeable, in any capacity, with interest on any of the fund or solvent credits in his hands." Therefore, there are only two questions now before us, to wit, the amount allowed for commissions, and the defendant's liability for interest.

The question as to whether he should be charged with the full amount of the solvent notes and accounts sold by him cannot now be considered by us, as the rehearing allowed by Justice Avery was not general, but was restricted to the two points mentioned therein. As to all other matters the judgment is now final, and is past review, as the time within which, under the rules of this court, a rehearing could be granted on the other matters, has long since expired. We have given this case the most thorough investigation, and are forced to the conclusion that neither the record nor the briefs disclose anything relating to the only points now before us that was not apparently considered when the former judgment was rendered. The allowance of 22 per cent. each way, or 5 per cent. on the amount received, is in addition to the expenses incurred by the trustee, and is also exclusive of the allowances made to him as administrator of S. Weisel. As the highest principles of public policy favor a finality of litigation, rehearings are granted by us only in exceptional cases, and then every presumption is in favor of the judgment already rendered. Every case coming before this court is thoroughly investigated and carefully considered; and while we are liable to error, which we are always ready to correct, that error must be clearly pointed out to us before we can undertake to set aside a solemn adjudication, involving the rights of others. This is the clearly-defined policy of this court, and has been frequently enunciated in unmistakable terms. In Watson v. Dodd, 72 N. C. 240, Chief Justice Pearson, speaking for the court, says: "The weightiest considerations make it the duty of the courts to adhere to their decisions. No case ought to be reversed upon petition to rehear, unless it was decided hastily, or some material point was overlooked, or some direct authority was not called to the attention of the court." See, also, Hicks v. Skinner, 72 N. C. 1; King v. Winants, 73 N. C. 563; Haywood v. Daves, 81 N. C. 8; Devereux v. Devereux, 81 N. C. 12; Lewis v. Rountree, Id. 20; Mizell v. Simmons, 82 N. C. 1; Ashe v. Gray, 90 N. C. 137; Lockhart v. Bell, Id. 499, 501; Ruffin v. Harrison, 91 N. C. 76, 78; University v. Harrison, 93 N. C. 84; Dupree v. Insurance Co., Id. 237, 239; Fisher v. Mining Co., 97 N. C. 95, 97, 4 S. E. 772; Hannon v. Grizzard, 99 N. C. 161, 6 S. E. 93; Fry v. Currie, 103 N. C. 203, 206, 9 S. E. 393; Gay v. Grant, 105 N. C. 481, 10 S. E. 891, and 11 S. E. 242; Emry v. Railroad Co., 105 N. C. 45, 11 S. E. 162: Hudson v.

Jordan, 110 N. C. 250, 14 S. E. 741; Mullen v. Canal Co., 115 N. C. 15, 20 S. E. 167. A partial change in the personnel of the court affords no reason for a departure from the rule, but rather emphasizes the necessity for its application, as was intimated in Devereux v. Devereux, supra. The petition is dismissed,

KINNEY v. NORTH CAROLINA R. CO. (Supreme Court of North Carolina. May 28, 1898.)

INJURY TO RAILROAD EMPLOYE NEGLIGENCE — EVIDENCE-INSTRUCTIONS-FELLOW SERVANTS.

1. Where two passenger trains collide on the same track, it is evidence of negligence.

2. It is not error to refuse a charge that, if the jury believe the evidence, they should find for a certain party, where the evidence is conflicting.

3. An instruction charging that a certain fact is proved, or if proved, that it proves another fact, violates Code, § 413, which provides that no judge, in a charge, shall give an opinion whether a fact is proven.

4. Where the jury found that plaintiff had not contributed to his injury, it was immaterial, under Priv. Laws 1897. c. 56, abolishing the doctrine of fellow servants as far as railroads are concerned, which servant of defendant railroad was guilty of the negligence proximately causing the injury.

5. Where the lessor leased its entire line of railroad between certain points, including roadbed, track, and switches, and authorized the lessee to carry freight and passengers over the road with its own engines and cars, the lessor is liable for injuries caused by the negligence of the lessee in operating trains over said portion of track with the knowledge and consent of lessor.

Appeal from superior court, Davidson county; McIver, Judge.

Action by J. C. Kinney against the North Carolina Railroad Company. There was a judgment for plaintiff, and defendant appeals. Affirmed.

Geo. F. Bason and Charles Price, for appellant. F. C. Robbins and Long & Long, for appellee.

DOUGLAS, J.

This is an action brought by the plaintiff to recover damages for personal injuries received in a collision at Harrisburg, N. C., on the 11th day of April, 1896. The plaintiff was engineer of train No. 11, which was the local passenger train going south. He started from Danville on the morning of the 11th for Charlotte, leaving Danville some 40 minutes late. When he reached Salisbury he received the following telegraphic order from the office of W. B. Ryder, superintendent at Charlotte, viz.:

"Superintendent's Office. April 11th, 1897. For Salisbury, C. & E. No. 11: No. 36, engine 319, will wait at Concord until 11:20 a. m. for No. 11, engine 840. No. 11 will run by, and back in. W. B. R.

"Time received: 10:22 a. m. O. K. given at 10:24 a. m.

"Conductor Lovell, Engineer J. C. Kinney, train No. 11. Made complete at 10:24 a. m. Received by Crawford. W. B. R."

When he reached Concord he received the following order:

"Superintendent's Office. April 11th, 1897. For Concord, C. & E. No. 11: No. 36, engine 319, will wait at Harrisburg until 11:15 a. m. for No. 11, engine 480. W. B. R. "Time received, 10:47 a. m. O. K. given at 10:48 a. m.

"Conductor Lovell, Engineer J. C. Kinney, train No. 11. Made complete at 11:02 a. m. Young. W. B. R."

Exact copies of the above orders were given to Tunstall, engineer, and Gentry, conductor, of north-bound train No. 36; both orders being delivered at the same time, viz. at 10:48 on the same day.

The issues submitted, with the answers thereto, are as follows: "(1) Was plaintiff injured by the negligence of defendant's lessee? Yes. (2) Did plaintiff by his negligence contribute to his injury? No. (3) Notwithstanding the contributory negligence of plaintiff, might the injury have been avoided by reasonable care on the part of defendant's lessee? - (4) What damages has plaintiff sustained by reason of such injury? $20,000. (5) Is defendant company answerable for the negligence of the lessee company in this action? Yes." There was judgment accordingly.

The plaintiff testified, in part, that he arrived with his train at the north switch at Harrisburg at 11:13% a. m., by his watch; that he had sufficient time to have gotten on the switch before 11:15, and would have done so if the collision had not occurred; that when at the whistle post, one-half mile from the station, he shut off his engine, and blew the station blow, and slowed up so as to stop at the switch; that he looked up, and saw train No. 36 about a third of a mile from him, coming towards him; that he could see only the top of the train, on account of one or more box cars, and could not then tell how fast it was running; that, when No. 36 was within about 1,200 feet of him, he saw it was coming at the rate of 60 miles an hour; that he then saw there would be a collision; that he put on the air brakes to the full pressure, so as to make his train as steady as possible to resist the shock, fastened the throttle, shut and fastened the furnace door, and stepped off the engine, when he was immediately struck. There was much testimony on both sides, aggregating 159 printed pages besides the exhibits, which it is unnecessary and impracticable to recapitulate here. It is sufficient to say that there was in many respects a serious conflict of testimony, and that that conflict has been settled by the jury. In fact, there is scarcely a naked question of law presented in the entire case. That two passenger trains, in open daylight, should come together with such terrific force, is evidence of negligence. If the doctrine of "res ipsa loquitur" ever applies, it would certainly do so in such a case. If the plaintiff has not been

guilty of negligence, somebody else must have been, and for that negligence he would be entitled to recover. This was peculiarly a case for the jury, and their verdict, rendered under proper instructions, must be permitted to stand.

We see no substantial error in the charge of the court, or in the refusal to charge. The charge, with the special instructions given, sufficiently and fairly presented the case, and the law relating thereto. Several of the instructions refused, such as Nos. 2, 3, and 5, though slightly different in form, amounted simply to telling the jury that, if they believed the evidence, they should find for the defendant. As the evidence was essentially conflicting, it was, of course, impossible for the jury to believe all of it, and therefore such instructions could not be given. Other prayers, such as Nos. 4, 9, and 11, in effect instructed the jury that, if they believed the evidence, they would find certain evidential facts to be true, and that, therefore, other facts must be true, which is equally beyond the province of the court. For instance, prayer No. 4 requests the court to charge that: "The evidence shows that nobody was misled or confused by the orders themselves, nor by the manner of their delivery to the conductors and engineers of the two trains. The evidence further shows that the orders were perfectly safe, if they had been properly executed." In this connection the word "shows" is equivalent to the word "proves," and such an instruction would be clearly in violation of section 413 of the Code. This is essentially different from the court's instructing the jury that, if they believe the evidence, they will find a certain issue "yes" or "no," because such an instruction, which can be given only where there is no conflict in the testimony, leaves entirely to the jury the credibility of the witnesses, and simply says to them, in effect, that, if they believe the facts testified to by the witnesses without contradiction, such facts would, in law, constitute negligence, or contributory negligence, as the case might be. The court cannot charge that a certain fact is proved, or, if proved, that it proves another fact. Compound and argumentative instructions are not favored by the courts, and no exception can be sustained to a refusal to charge, where any part of the prayer is erroneous.

There was no error in charging that the defendant would be responsible for the negligence of the engineer on train No. 36, as the act of February 23, 1897, printed as chapter 56 of the Private Laws of 1897, abolishes the doctrine of fellow servant, as far as railroads are concerned. Why this act, which is essentially public in its nature, should have been printed among the private laws, we cannot say.

Whether the telegrams in question did actually deceive or confuse the engineer, Tunstall, was a question for the jury. That they were calculated to confuse, appears to

us. upon their face. But, as the jury has found that the plaintiff was not guilty of contributory negligence, it makes no difference whether the negligence proximately causing the injury was that of Tunstall, the engineer, or Ryder, the superintendent.

The exception of the defendant as to the refusal to submit its issues cannot be sustained. The only real difference between the issues tendered and submitted was in the first issue, as the third issue was not answered by the jury, and the fifth issue was a conclusion of law. As to the first issue, that tendered by the defendant was as to its own negligence, while that of the plaintiff was as to the negligence of the defendant's lessee. The issue as submitted expressed the true contention, as the defendant is responsible for the acts of its lessee. Norton v. Railroad Co. (at this term) 29 S. E. 886, and cases there cited. The judgment is affirmed.

GENERAL ELECTRIC CO. v. MORGANTON ELECTRIC LIGHT & POWER CO. et al. (Supreme Court of North Carolina. May 26, 1898.)

MORTGAGES ON CORPORATE PROPERTY - MATERIAL FURNISHED-EXEMPTIONS.

A dynamo used in an electric light and power plant of a company is not "material," within the meaning of Code, § 1255, providing that mortgages upon the property of a corporation shall not exempt its property from an execution for material furnished the corporation.

Appeal from superior court, Burke county; Starbuck, Judge.

Action by General Electric Company against Morganton Electric Light & Power Company and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Martin & Webb, for appellant. F. H. Busbee, for appellees.

MONTGOMERY, J. The defendant company had erected a plant upon its own land in Morganton, and was engaged in the business of generating electricity for the purpose of furnishing light to its customers, when it became necessary to enlarge the power of the dynamos they were using, in order to serve the increasing patronage of the company. The dynamos in use were removed from their position, and two larger ones were furnished by the plaintiff company, and were placed into positions of the ones removed, and fastened by iron bolts to a wooden frame on which the metallic part of the dynamos is built. The wooden frame, with the dynamos fastened thereon, is built into a brick foundation, and firmly held into position by cement, and connected with the other appliances in the usual way. The claim of the plaintiff is that it has a lien for the price of the dynamos, from the date of furnishing them, on the property of the defendant, and that the lien is superior