Baker v. Norfolk & S.R. Co.
| Decision Date | 26 February 1907 |
| Citation | 56 S.E. 553,144 N.C. 36 |
| Parties | BAKER v. NORFOLK & S. R. CO. |
| Court | North Carolina Supreme Court |
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.
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 jury 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.
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 evidence to sustain each of these contentions. The defendant had introduced a witness M. H. Snowden, who testified that he heard a conversation between the plaintiff and F. L. Garrett a few months after the accident, in which the former stated that Cecil Williams said when they left the mill that he would drive to the crossing, and stop there to "gentle" his horse, and that he did drive there and stop. The fireman testified that the horse was standing at the crossing when last seen by him before the engine was reversed. The defendant proposed to prove by F. L. Garrett what the plaintiff had said to him in that conversation as to "why the horse was driven up close to the track." This testimony was offered in order to show that the horse had stopped on reaching the crossing and to corroborate the fireman, who testified that the horse was standing there when last seen by him before the engine was reversed. This evidence was excluded by the court. There was testimony to the effect that the engineer applied the brakes as soon as he saw the horse and buggy approaching the crossing, and, when the horse stopped near the crossing and appeared to be under control, he released the brakes, and the train continued at its former speed; that is, 50 miles an hour, until the engineer was notified by the fireman of the danger, and reversed the engine. He could not see the horse and buggy when he was told by the fireman of the danger, as the boiler of the engine obstructed his view; he being on the right-hand side of the cab. The defendant requested the court to charge the jury that if the engineer applied the brakes when he first saw the horse and buggy approach the crossing and then released them when the horse stopped and stood near the crossing, apparently under the control of the driver, and the horse did not start to cross the track until it was too late to stop the train and prevent the collision, and the engineer then did all that could be done to stop the train, the defendant was not guilty of any negligence, and they should so find. The court did charge, at the defendant's request, that "if the horse was stopped before he reached the track and appeared to be under control, defendant was not required to stop the engine or slacken the speed, because of the presence of the buggy and horse, and was not guilty of negligence in failing to do so on that account, and the jury shall so find." Issues as to negligence, contributory negligence, the last clear chance and damages, were submitted to the jury. The substance of the instruction which was requested by the defendant upon the first issue, as to the defendant's negligence, and refused by the court, as to that issue, was given upon the third issue, as to the last clear chance. The court charged generally that if the engineer failed to exercise ordinary care in approaching the crossing after he saw the position of the horse and buggy, and this caused the collision, the jury should answer the first issue "Yes," other...
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