Arrowood v. South Carolina & G. Extension Ry. Co.

• Decision Date: 22 May 1900
• Citation: 36 S.E. 151,126 N.C. 629
• Parties: ARROWOOD et al. v. SOUTH CAROLINA & G. EXTENSION RY. CO.
• Court: North Carolina Supreme Court

36 S.E. 151

126 N.C. 629

ARROWOOD et al. v. SOUTH CAROLINA & G. EXTENSION RY. CO.

Supreme Court of North Carolina

May 22, 1900

Appeal from superior court, McDowell county; Shaw, Judge.

Action by Mathilda D. Arrowood and J. J. Davis, as administrators of estate of Albert Arrowood, deceased, against the South Carolina & Georgia Extension Railway Company for causing the death of plaintiff's intestate. The court permitted certain plats of the scene of the accident to be used in explanation of the testimony of one of the witnesses for plaintiff, but instructed the jury that the map was not evidence in itself, not having been made under an order of court, but ex parte, in the absence of defendant, and that they were permitted to look at it and consider it only in explanation of the testimony of the witness. From a judgment for plaintiffs, defendant appeals. Affirmed.

An ex parte map or plat of the scene of an accident may be used in evidence to explain the testimony of a witness in relation to points and distances referred to.

Locke Craig and P.J. Sinclair, for appellant.

D. W Robinson, E. J. Justice, and J. T. Perkins, for appellees.

CLARK J.

The first exception for permitting the use of the map cannot be sustained, as it was admitted merely to explain the witness' testimony and as a part thereof. Riddle v Town of Germanton, 117 N.C. 387, 23 S.E. 332, and cases cited; Tankard v. Lumber Co., 117 N.C. 558, 23 S.E 46.

The court instructed the jury that if they found from the evidence "that this was a public passway, as heretofore defined, and that the engineer, by reason of the curve in the road and the obstruction of the smokestack, could not keep a proper lookout for persons on the track, and that the fireman could have done so, then it would have been the duty of the defendant to have had this fireman to have assisted this engineer in keeping this outlook." And also: "What might be ordinary care under certain circumstances might not be ordinary care under other circumstances; and if you should find from the evidence, under the rules to be hereinafter given you, that the public were in the habit of using the railroad track at the point of the accident as a passway then a greater degree of care would be required of the defendant in running its trains at this point than the defendant would have exercised in running its trains along the track where the public had not been habitually permitted to use the track as a passway." "All that the defendant is required to do is to use ordinary care under the circumstances of the case, and, in determining whether the defendant was negligent as alleged in the complaint, you must first ascertain what duty, if any, it owed the plaintiff's intestate at the time of the alleged killing, and, if it owed a duty, whether or not it failed to perform that duty." The above paragraphs of the charge are excepted to, but without cause. There was ample evidence to go to the jury tending to show that the track was used habitually as a passway, and in telling the jury that, if they found such to be the fact, the defendant should observe a greater degree of care than in running its trains where the track was not so used, the court was stating almost a truism. In moving trains through a crowded city, it must be at a lower speed, with much greater control over the engine, and keener lookout kept in front, than in going along a straight track in an open and almost uninhabited country, and the court properly told the jury that the amount of care depended upon the circumstances of the case. So, on a straight track, the careful lookout of the engineer would ordinarily be sufficient; but on a winding mountain track, turning first to the right, then to the left, if the engineer could not see the track when the engine turned to the left, then it was his duty to have the...