Little v. Carolina Cent. R. Co.

Decision Date21 April 1896
Citation24 S.E. 514,118 N.C. 1072
PartiesLITTLE v. CAROLINA CENT. R. CO.
CourtNorth Carolina Supreme Court

Appeal from superior court, Union county; Bryan, Judge.

Action by J. F. Little, by his next friend, against the Carolina Central Railroad Company, to recover damages for personal injuries. There was judgment for plaintiff, and defendant appeals. Reversed.

Plaintiff was injured while crossing a railroad trestle which the public was warned not to walk on. He saw the train coming and got out on the cap sill. The engineer had applied the brakes when he first saw plaintiff, but seeing him going out on the cap sill, and knowing that workmen often got on the cap sill to avoid trains, released the brakes, believing the plaintiff perfectly safe, though, having the train under control, he could have stopped, had he believed it necessary. Held, that the jury should have been instructed that if the engineer, on the reasonable belief that plaintiff was safe released the brakes, when, but for such belief, he would have stopped the train, the plaintiff could not recover.

The court submitted the following issues: "(1) Was the plaintiff injured by the negligence of the defendant? (2) Did the plaintiff contribute to his injury by his own negligence? (3) Notwithstanding the negligence of the plaintiff, could the defendant have avoided the injury to the plaintiff by the exercise of ordinary care?"

The plaintiff testified in his own behalf as follows: "On January 19, 1894, came to Monroe, and walked home on railroad track, one and a half miles this side Beaver Dam. I was going down track to cross trestle. Looked back, and saw no train. I could see back three-quarters mile. As I got near middle of trestle, saw some hands. I heard them holler, and saw them motion their hands. I looked back, and saw train coming about fifty yards from me; maybe, one hundred yards. I was very near midway. I made for the side, took seat on cap sill squatted down, and put my arms around guard rail. I had not heard it blow. Can hear it blow two miles, in still weather. It was very still day. Train passed me, and struck me on head. It made a wound four inches long. Scraped the skull; a little hole up in head. No way to get off, unless I jumped off. Trestle forty or fifty feet high. It didn't stop. If it slacked up, I could not tell it. It frightened me pretty badly when I saw train coming. I was hurt pretty badly. Could walk. Had pain in head twelve months continuously occasionally. It gave me headache every time I rode horseback, or did any jarring work. I couldn't hear as well as I did before. Could not hear well then." Cross-examined: "I got on track between rails at Monroe. When I got to the trestle I looked back. I can read. Saw printed notice on board, notifying persons not to go on trestle. I was scared bad. The place I got on was about one and a half feet from end of cross-ties. I had just time to get on. I think it was front part of train that struck me. It was a short train, --a passenger train. If I had thrown my head back, I would not have been hit. Not certain about the distance the train was from me when I first saw it. I was facing track. Might have been looking towards Monroe. I couldn't work for about two months. I had headache before. Dr. Ashcraft treated me. He said I could get a doctor, if necessary. I had Drs. Green and Dees. Have paid Dr. Dees two dollars; nothing to Dr. Green." Redirect "I don't know how much I owe Dr. Green. Ashcraft had nothing to do after I went to Green and Dees. After I squatted, it was about one-quarter minute before train struck me. If the train had blown when I could have first seen it, I could have got off."

B. M. Medlin, for plaintiff, testified: "Live one-half mile from trestle. It is not under one hundred yards long. Between fifty and sixty feet high. I passed it every month. Sometimes walked over. At that time no other crossing. Many people crossed there. Foot log washed away. Cap sill stuck out nearly two feet from track. A man could swing down. Cross-ties six or eight inches apart. A man can be seen on trestle one thousand one hundred and fifty yards. Two signboards,--one at each end of trestle. I measured the rails. There are one hundred and fifteen rails, thirty feet each." Cross-examined: "The signboards are twelve or fifteen feet from end of trestle. One could tell that a person was between the signboards. Have seen train pass when hands at work on trestle. Don't know that I ever saw any of the hands get on cap sill. From cap sill to top of rail about two feet. From end of cross-tie to cap sill, eighteen inches or two feet. A man, by squatting down on cap sill, looks like he might be safe; but I don't know." Redirect: "At one thousand one hundred yards I can tell that a boy was on trestle, coming towards me."

J. F. Little, recalled: "I was in between the rails when I saw the train."

J. C Neimyer, in behalf of defendant, testified: "I recollect the occurrence. I was the engineer. Three-quarters mile from curve to trestle. I saw somebody on the track. Could not tell which part,--whether on trestle or not. Between one-quarter and one-half mile, saw man on trestle. He walked from middle of track on trestle, and stepped off onto cap sill. I applied brakes to reduce speed for trestle, which was twenty miles an hour. I saw then that he was out of my way. If I had retained my brake, I would have stopped, if he had been in my way. I relieved the brake, seeing he was out of my way, which brought me to fifteen or twenty miles per hour. I knew the bridgemen were working on trestle. I pass them almost daily on cap sill. I looked out. Had my head...

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