Bagwell v. Southern Ry. Co.

• Decision Date: 23 December 1914
• Docket Number: 449.
• Citation: 83 S.E. 814,167 N.C. 611
• Parties: BAGWELL ET AL. v. SOUTHERN RY. CO. ET AL.
• Court: North Carolina Supreme Court

83 S.E. 814

167 N.C. 611

BAGWELL ET AL. v. SOUTHERN RY. CO. ET AL.

No. 449.

Supreme Court of North Carolina

December 23, 1914

Appeal from Superior Court, Mecklenburg County; Adams, Judge.

Action by Bernice Rudd Bagwell and husband against the Southern Railway Company and another. From a judgment for defendants plaintiffs appeal. Affirmed.

This is an action to recover damages for personal injury, caused, as the plaintiff alleges, by the negligence of the defendant. The injury occurred at a public railroad crossing by a collision between the train of the defendant and an automobile, which was owned and driven by Mr. Jamison, and in which the plaintiff was a guest. The plaintiff offered evidence tending to prove that the defendant failed to give notice of the approach of the train to the crossing, and also, if it did give notice, that by the exercise of ordinary care the train could have been stopped in time to avert the injury. The defendant introduced evidence tending to prove that it gave notice of the approach of the train to the crossing, and that the automobile went upon the track such a short distance in front of the approaching train that it could not have been stopped in time to avoid injury. The jury answered the issue of negligence in favor of the defendant and from the judgment pronounced upon the verdict the plaintiff appealed.

Instruction on issue of negligence after train employes discovered, or could have discovered, perilous situation of person in automobile held as favorable as plaintiff was entitled to.

Morrison & McLain, of Charlotte, for appellants.

F. M Shannonhouse, of Charlotte, O. F. Mason, of Gastonia, and Manly, Hendren & Womble, of Winston-Salem, for appellees.

ALLEN J.

No authority is cited in the brief of counsel for appellant for the reason that there is very little difference of opinion as to the principles of law controlling the trial of the case the real controversy being as to the correct application of those principles, and whether his honor gave the instructions to which the plaintiff was entitled.

The first impression is that he did not do so, and that he gave undue prominence to the negligence of Mr. Jamison, the driver of the automobile, in which the plaintiff was a guest at the time of her injury, and that the jury might infer that he intended this negligence to be imputed to the plaintiff, but when the charge is read and considered more carefully and as a whole, the conclusion cannot be avoided that no principle of law has been erroneously stated or applied, and a new trial cannot be ordered except upon the theory that the charge was more complex than was necessary, and that the jury did not understand it, which would be violative of our system of administering justice, which is based upon the idea that jurors are intelligent and honest. Cooper v. Railroad, 163 N.C. 150, 79 S.E. 418.

The allegations of negligence contained in the complaint are: (1) That the crossing at which the plaintiff was injured was negligently and carelessly constructed and maintained, in that trees, bushes, and shrubbery were permitted to stand upon the banks and obstruct the view of approaching trains, and in that the defendant failed to place and keep ballast between the rails. (2) That at the time of the plaintiff's injury, the defendant was running its train at an unlawful rate of speed. (3) That the defendant negligently failed to blow a whistle or ring a bell or give any warning of the approach of its train to the crossing. (4) That the defendant negligently failed to stop its train after discovering the plaintiff upon the crossing, or after it could have discovered her by the exercise of ordinary care.

No evidence was introduced in support of the first allegation of negligence; and, while evidence was introduced that the train was run at a high rate of speed, this was not relied on as a distinct ground of action, but in support of the third and fourth allegations. The case was therefore tried upon the theory that the defendant had failed to give notice of the approach of its train to the crossing, and that after the automobile was upon the crossing the defendant, by the exercise of ordinary care, could have discovered the perilous position of the plaintiff, and could have stopped its train in time to avert the injury, and evidence was introduced in support of both of these contentions.

Upon the first of these his honor charged the jury as follows:

"What duty did the Southern Railway Company owe to those using the crossing? It is admitted that the crossing at which the injury occurred was a public grade crossing, at the intersection of the railroad and the public highway, and that it was habitually used by the public. If you find the facts to be as admitted in this respect, it was then the duty of the Southern Railway Company, through its employés in charge of the train, as the train approached the crossing, and before it approached the crossing, to use due care in the operation of its train; due care meaning such care as was commensurate with the dangers reasonably to be anticipated in the

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