SCOTT v. THE RAILROAD.

you by a preponderance of the testimony that this is true. If from the plaintiff's proof, it appears to you that the injury was caused by the defendant's negligence, and the defendant seeks to repel this by averring contributory negligence on the part of the plaintiff, the burden of proof shifts, and it must, by testimony of the same probative force, establish the averment. If, however, the plaintiff upon his own proof, shows that according to the rules of law laid down by the Court, he contributed to the injury, the burden is not on the defendant, but it may rely upon the failure of the plaintiff to make out his case, and need not introduce testimony. I charge you that the plaintiff cannot recover, if by his own negligence he contributed to the injury."

There was a judgment for the plaintiff, and the defendant appealed.

Messrs. D. L. Russell, Ricaud and J. D. Bellamy, for the plaintiff.

Messrs. Geo. Davis and C. M. Stedman, for the defendant.

SMITH, C. J., (after stating the facts). There are but three errors sufficiently assigned in the record requiring the exercise of our appellate jurisdiction, and these are the refusals to submit the proposed issue as to the defendant corporation's agency in bringing about the disaster to the person, horse, and dray of the plaintiff; and to give the 12th instruction, as also to the modification in that next numbered. I. The issue proposed and refused:

It is true, the inquiries into the defendant's negligence, and that imputed to the plaintiff, contributing to the result, might have been presented to the jury in separate issues, as was done in Kirk v. Railroad, 94 N. C., 625, inasmuch as the liability for the consequence depends on the presence of the one and the absence of the other on the occasion of the mishap. Yet when the action of both has contributed to the bringing about

SCOTT v. THE RAILROAD.

of the injury, it is sometimes not easy to run the dividing line between the co-operating agencies, and say where the essential culpability rests. The Judge deemed the association so close as to involve both inquiries, and that the same end would be reached, and the minds of the jury less distracted from the merits of the controversy, by having a single issue, under directions to render a negative response, if upon the evidence, it appeared, that the injury would not have been suffered, had the plaintiff exercised proper care and vigilance in avoidance. So he charged the jury, and we must suppose his instruction was understood and acted upon. If so, the defendant has had every advantage which a second issue, if allowed, would have given him, and no prejudice has come in consequence of the refusal. Cedar Falls v. Wal

lace, 83 N. C., 225.

II. The denied instruction:

We can see no error in this ruling. There is no negligence in the single act of passing from the middle of the street where the approaching train could have been seen, to a place where a partial obstruction to the view was met. It was in moving thence towards the track, without a sharper lookout and greater carefulness, to which negligence can be attributed, and this is covered by other parts of the charge. III. The modified instruction:

The instruction in the form asked, was entirely inadmissible, for seeing the cars at the first crossing, would not make the plaintiff "guilty of contributory negligence" and defeat his recovery, while it should have imposed greater caution on him, driving onward afterwards. Yet even this was given, with the aldition, that this would be so, if when he saw the cars, he discovered that they were on the track that brought them towards him, and the ability to thus distinguish, depended on conflicting testimony, bearing upon the series of instructions favorably responded to We can see no just grounds of complaint afforded the appellant.

LYON v. LYON.

The instructions given at the instance of the plaintiff are not excepted to, nor is the ruling assigned as error. Nor if it had been, would we be prepared to sustain the exception thereto.

We cannot disturb the verdict, for the responsibility of rendering it, when there is any reasonable, that is any, evidence to warrant the finding, rests upon the jury.

There appears no error in the record, and the judgment must be affirmed.

No error.

Affirmed.

IRA LYON et als. v. T. B. LYON.

Will-Boundary.

1. Where a devise described the devised land as containing two hundred acres, the area cannot control the boundaries by which the land is also described in the will.

2. In doubtful cases the area may aid in determining the boundaries, but when it is at variance with them, it must be disregarded.

(Campbell v. Branch, 4 Jones, 313; Spruill v. Davenport, 1 Jones, 203; cited and approved).

CIVIL ACTION, tried before Connor, Judge, at Fall Term, 1886, of GRANVILLE Superior Court.

The following map will explain the controversy:

LYON v. LYON.

There was a judgment for the defendant and the plaintiffs appealed.

Mr. John W. Hayes, for the plaintiffs.

Mr. E. C. Smith, for the defendant.

SMITH, C. J. John W. Lyon died in December, 1878, having on the 11th day of April preceding, made his will, which has been proved, and contains among others, the following clause:

“Item.—I give to my nephew Ira Lyon, and my two nieces, Kate and Loretta Lyon, children of my brother, William M. Lyon, 200 acres of land bounded as follows: Beginning on the top of the hill north of the Hester Branch, in the Fish Dam road, thence with said road to Allen's line, thence down a drain to the Ledge of Rock Creek, and by a chopped line to Duncan's corner, thence with my line to the road, thence with the road to the Ledge of Rock Creek, thence up the road to some point so as for a line running about south through my land to take in my dwelling, to the line of the land that I bought of Jones, thence with the Jones line about west to the beginning, making 200 acres, to them and their heirs."

The present action, commenced on the 27th day of August, 1885, is to recover possession from the defendant of a parcel of land, triangular in form, and bounded by lines which connect the points or corners designated by the letters Z, M and X on the accompanying plat, used on the trial, which the plaintiff alleges is devised to him in the clause quoted. The answer denies the plaintiff's title, as thus derived, and the parties, waiving a jury, agreed to submit the issues of fact, as well as of law, to the Judge, to be by him tried and determined.

The testator, it was admitted, owned four tracts, represented on the plat, and known as the Hester tract, the Jones