Abernathy v. Southern Ry. Co.

• Decision Date: 13 December 1913
• Citation: Abernathy v. Southern Ry. Co., 80 S. E. 421, 164 N.C. 91 (N.C. 1913)
• Parties: ABERNATHY v. SOUTHERN RY. CO. ET AL.
• Court: North Carolina Supreme Court

80 S.E. 421

164 N.C. 91

ABERNATHY v. SOUTHERN RY. CO. ET AL.

Supreme Court of North Carolina

December 13, 1913

Appeal from Superior Court, Burke County; Cline, Judge.

Action by R. A. Abernathy, administrator, against the Southern Railway Company and another.From a judgment of nonsuit plaintiff appeals.Affirmed.

It appears in this case that the intestate of the plaintiff and R. J. Hodge were walking on the main line of defendant near Bridgewater.They left the main line and went to the pass track because they saw a train headed east, at the depot.Trains from the east and the west passed at that place, and the inner side track was the pass track.The switch was open from the main line to the inner side track, so that the train from the east could go onto the side or pass track and permit the train going east to pass.The pass track was known to be used for that purpose.The intestate was killed and R. J Hodge was injured by the train going west while it was moving on the pass track towards the station.The engineer had given the station blow with the whistle, and also the "meeting point" blow, before the train entered upon the siding.Abernathy and Hodge could have seen the train, if they had looked after they got upon the pass track, in time to have left the track and avoided the accident.Plaintiff's witness S.W. Cannon said: "I did not see them look around until the signal was given and Abernathy turned his head.There was no obstacle to keep them from getting out of the way."There was evidence that a train coming from the east, as this train was, could be seen some distance before it reached Abernathy and Hodge.Plaintiff's witness Ben Corpening testified that it was about four minutes from the time he first saw the train until it struck Abernathy, and that the noise of the train, as it comes in could be heard about a half a mile.There are three tracks at the place, the main line, pass track, and a shorter side track further out to the southwest.A work engine was on the last-mentioned track exhausting steam and making a loud noise.There were signboards near the place to warn travelers.There was much other evidence of the same kind in the case.All the evidence was offered by the plaintiff, and at the close of it the court, on motion of defendant, ordered a nonsuit, under the statute, and plaintiff appealed.

A pedestrian on a railroad track must look and listen for trains.

A. A. Whitener and W. A. Self, both of Hickory, and Spainhour & Mull, of Morgantown, for appellant.

S. J. Ervin, of Morgantown, for appellee.

WALKER J.(after stating the facts as above).

We have repeatedly held, since the case of McAdoo v. Railroad,105 N.C. 140, 11 S.E. 316, was decided in 1890, nearly a quarter of a century ago, that a person walking along the track of a railroad company must look and listen for approaching trains and take care of himself, and the engineer has the right to assume that he has done so and will leave the track in time to avoid any injury to himself, and, having the right to act upon this assumption, he is not guilty of negligence in failing to give signals to the pedestrian.If any injury results to the latter, the law imputes it to his own negligence in not using proper caution for his own safety.We believe this to be a correct statement of the law applicable to such cases, and the one approved by McAdoo's Case, as will appear from the following language of Justice Avery: "When a person is about to cross the track of a railroad, even at a regular crossing, it is his duty to examine and see that no train is approaching before venturing upon it, and he is negligent when he can, by looking along the track, see a moving train, which, in his attempt to blindly pass across the road, injures him.Bullock v. Railroad,105 N.C. 180[10 S.E. 988];2 WoodR. R.§ 333.Even where it is conceded that one is not a trespasser, as in our case, in using the track as a footway from a foundry to his house, it behooves him to be still more watchful.The license to use does not carry with it the right to obstruct the road and impede the passage of trains.A railroad company has the right to the use of its track, and its servants are justified in assuming that a human being who has the use of all his senses will step off the track before a train reaches him.Wharton on Negligence, § 389a;Parker v. Railroad,86 N.C. 221;2 WoodR. R. § 320."The same doctrine has recently been stated by this court in its latest opinion upon this question, by Justice Hoke: "We have held in many well-considered cases that the engineer of a moving train, who sees on the track ahead a pedestrian who is alive and in the apparent possession of his strength and faculties, the engineer not having information to the contrary, is not required to stop his train, or even slacken its speed, because of such person's presence on the track.Under the conditions suggested, the engineer may act on the assumption that the pedestrian will use his faculties for his own protection and will leave the track in time to save himself from injury."Talley v. Railroad,80 S.E. 44, at this term, citing Beach v. Railroad,148 N.C. 153, 61 S.E. 664;Exum v. Railroad,154 N.C. 408, 70 S.E. 845, 33 L. R. A. (N. S.) 169.

There may be circumstances where the otherwise absolute duty on the part of the track walker to look and listen and to keep constantly on the lookout for approaching trains may be qualified by circumstances, but they are not present in this case.Here the deceased and his walking companion, who testified in the cause, had notice of the invariable custom that trains passed at that point, and they were in full view of a train "headed east," then standing at the station and waiting for the coming train to take the inner side track (which they, for their own convenience, were using for a footway), in order that it might proceed by the main track on its journey.The approaching train gave every possible warning; it blew for the station (a single long blow), and for the "place to meet and pass"(two short, sharp blows).Other persons similarly situated to the intestate and Hodge heard these blows and knew the train was coming to the pass track.The switch, which they had passed by, was set for the siding, so that the train bound west could enter upon it and wait for the one "headed east" to pass it.It was therefore a live track and a place of danger, and they looked not, neither did they listen, according to plaintiff's witness Cannon.The engineer was so sure that they knew of his approach that he did not again blow the whistle until it was too late, and in this, by all our cases, he was in no fault.If it was even negligence at all, it was not a culpable act of negligence.This track was being used by the railroad company every day for the passing of its trains.They were on time, and the moment for their passing had arrived.A court of the highest authority has said that, under such circumstances, "the track itself, as it seems necessary to repeat with emphasis, is itself a warning.It is a place of danger, and a signal to all on it to look out for trains.It can never be assumed that trains are not coming on a track and that there can be no risk to the pedestrian from them."But the same has been so often the utterance of this court that the doctrine has become deeply imbedded in our jurisprudence.The facts of this particular case bring it squarely within it, and they so clearly point to the unfortunate negligence of the intestate as the active and efficient cause of his death, and this includes his companion as well, that it is impossible to distinguish it from the many cases decided here upon the same principle, such as McAdoo v. Railroad Co., supra;Parker v. Railroad Co.,86 N.C. 221;Meredith v. Railroad Co.,108 N.C. 616, 13 S.E. 137;Norwood v. Railroad Co.,111 N.C. 236, 16 S.E. 4;High v. Railroad Co.,112 N.C. 385, 17 S.E. 79;Syme v. Railroad Co.,113 N.C. 558, 18 S.E. 114;Bessent v. Railroad Co.,132 N.C. 934, 44 S.E. 648;Stewart v. Railroad Co.,128 N.C. 518, 39 S.E. 51;Wycoff v. Railroad Co.,126 N.C. 1152, 37 S.E. 999;Sheldon v. Asheville,119 N.C. 606, 25 S.E. 781;Beach v. Railroad Co.,148 N.C. 153, 61 S.E. 664;Lea v. Railroad Co.,129 N.C. 459, 40 S.E. 212.

We said, in Beach's Case, that: "A railroad track is intended for the running and operation of trains, and not for a walkway, and the company owning the track has the right unless it in some way restricted that right, to the full and unimpeded use of it.The public have rights as well as the...