Baker v. Norfolk & S. R. Co

• Citation: 56 S.E. 553, 144 N.C. 36
• Case Date: February 26, 1907
• Court: United States State Supreme Court of North Carolina

144 N.C. 36
56 S.E. 553

BAKER.
v.
NORFOLK & S. R. CO.

Supreme Court of North Carolina.

Feb. 26, 1907.

1. Railroads — Crossing Accidents — Evidence—Admissibility.

In an action for injuries sustained by plaintiff in a collision at a crossing between the vehicle in which he was riding and defendant's train, the fireman testified that the horse was standing at the crossing when last seen by him, before the engine was reversed, and a witness testified that he heard a conversation between plaintiff and G. a few minutes after the accident, in which the former stated that the driver of the wagon said that he intended to drive to the crossing and stop there to "gentle" his horse and thereafter defendant offered to prove by G. what plaintiff had said to him as to why the horse was driven up close to the track. Held, that it was error to exclude such testimony.

2. Same—Questions for Jury.

In an action against a railroad for injuries sustained by plaintiff in a collision at a crossing between the vehicle in which he was riding and defendant's train, held a question for the jury whether the horse and vehicle were on the crossing, and the dangerous situation of plaintiff was or could have been discovered by the engineer when the engine first came in view, so as to have been stopped in time to prevent the collision, or whether when first seen by the engineer, the horse was standing near the crossing apparently under the control of the driver, and continued in that position until it was too late for the train to be stopped.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 41, Railroads, §§ 1160-1164 1/2.]

3. Same-Instructions.

The court refused an instruction requested by defendant, to the effect that if the engineer applied the brakes when he first saw the horse approach the crossing, and then released them when the horse stopped near the crossing apparently under control, and did not start to cross the track until it was too late to prevent the collision, and the engineer did all that could be done to prevent a collision, defendant was not guilty of any negligence. An issue as to contributory negligence was submitted, and the jurv found that there was no such negligence, and the court charged generally that if the engineer failed to exercise ordinary care after he saw the position of the horse, and it caused the collision, the jury should answer the first issue in the affirmative on an issue as to "last clear chance" the court substantially gave the instruction refused, but, as there was no contributory negligence, there was no finding on the issue as to "last clear chance." Held, that the refusal of the requested instruction on the first issue was reversible error.

4. Negligence—Imputed Negligence—Driver of Private Vehicle.

The negligence of a minor driver of a vehicle belonging to his father in approaching a railroad crossing cannot be imputed to one riding with him, as his guest.

Appeal from Superior Court, Pasquotank County; McNeill, Judge.

Action by Charles Q. Baker against the Norfolk & Southern Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Reversed, and new trial ordered.

This action was brought to recover damages for injuries received at a railroad crossing, which plaintiff alleges were caused by the negligence of the defendant in the management of one of its trains. The plaintiff and Bud Mann were riding in a buggy with Cecil Williams, who was driving. The horse and buggy belonged to Cecil's father. The three occupants of the buggy were all boys about 15 years old. They drove over the crossing to a cotton mill in Elizabeth City to collect their wages, and finding that they could not get their money at that time, they drove back, intending to hitch the horse to a tree on the other side of the track, and when they had reached the crossing the horse became frightened at the whistle of the engine, which was blown about that time, and backed on or very near the track, so that he could not be driven across. When the train came in full view of the crossing it was about one quarter of a mile away, and the dangerous position of the plaintiff and his companion could easily have been seen by the engineer. The engine struck the buggy and killed Cecil Williams and Bud Mann and severely injured the plaintiff. This was plaintiff's version of the facts. The defendant alleged that when the boys got in the buggy at the mill, Cecil Williams said that he intended to drive to the crossing and stop so as to "gentle" his horse, and that he did drive to the crossing and stop his horse very near the track; that the horse was standing there apparently under control of the driver when it was first seen by the engineer, and that when the train had approached too near the crossing to be stopped before reaching It, the horse became unruly, and got upon the crossing; that immediately the fireman notified the engineer, and he reversed the engine, and did all that could be done to stop the train, but failed to do so as it was too near the crossing, when the danger was first discovered, to be stopped in time to avoid a collision with the buggy. There was...