Beach v. Southern Ry. Co.
| Decision Date | 29 May 1908 |
| Parties | BEACH v. SOUTHERN RY. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Burke County; Guion, Judge.
Action by James I. Beach, as administrator of one Taylor, against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed.
A person on a railroad track as a trespasser, apparently in possession of his senses and faculties so that he can either see or hear the approach of a train, must listen, and, if he cannot hear must look, for the approach of trains, and his failure to do so is negligence on his part which at least concurs, up to the very time of the injury, with that of the railway company, if there be any negligence on its part, and he must be considered in law to have brought disaster upon himself if he is injured.
The intestates of the plaintiff were run over and killed at the same time by a passenger train while they were walking on the track of the defendant at a point about 300 yards west of the depot at Morganton. The accident occurred about 10 o'clock a. m. on the morning of December 5, 1905, a clear, bright day, and at a point on defendant's road where they might have seen the approaching train for a distance of from one-half to three-fourths of a mile before it reached them; the track being straight and unobstructed for at least that distance. The roadbed runs almost due east and west at this point, and the intestates were walking east along and on the track while the morning passenger train was coming from the west and moving in the same direction in which the intestates were walking. The station signal was sounded at the signal board, just one mile west of the depot the highway crossing signal given just east of this point and the engineer, on approaching intestates, who were walking along the track in front of the train, seeing that they did not step from the track, sounded the danger signal and applied the brakes in the effort to stop the train, but before he could do so, the engine came in collision with intestates and inflicted the injuries of which they died. The bell had been turned on when the station signal was given and was ringing automatically from that point. At the point where the intestates were stricken the road runs through a cut about 25 feet deep and from 20 to 30 feet wide at the bottom, and from 40 to 60 feet wide at the top, and along the main line and on the south side, and at a distance of 8 or 10 feet a side track runs parallel with the main line for some distance. On this side track, and near where the intestates were walking, there stood a freight train with engine attached, from which engine some smoke and steam were escaping, making a noise, which, it was contended, prevented the intestates, who were walking on the main line, from hearing the approach of the passenger train on the main line or the signals given by it. The track was straight and unobstructed, and there was nothing to prevent the engineer in charge of the engine pulling this train from seeing the intestates walking on the track ahead of him after he had gotten within a distance of one-half a mile of them, and nothing to prevent the intestates from seeing him. These were the facts as testified to by all the witnesses, and there was no material conflict in the evidence, except as to the distance within which the train had approached the intestates when the danger signal was repeatedly sounded and the brakes applied in the effort to stop the train before it came in collision with the intestates, and as to whether the intestates were walking between the rails or outside of the rails, some of the plaintiff's witnesses differing as to this. The plaintiff contended that the steam and smoke escaping from the freight engine on the side track was notice to the engineer in charge of the passenger train, from which he should have drawn the inference that the intestates, who were walking on the main line, could not hear the approaching train, and therefore he should have stopped the train until the intestates had left the track. While the defendant contended that the engineer had a right to assume that the intestates had looked and had notice of the approach of the train, and to act on the assumption that they would clear the track in time to avert the injury. The court charged the jury, among other instructions given, and at the request of the plaintiff's counsel, "that in order to answer the issue as to defendant's negligence affirmatively the jury must find, from the greater weight of the testimony, that the engineer, Keever, knew, when approaching the intestates on the track, and in time to have stopped his engine by the use of appliances at his command before coming in contact with them, that it was impossible for them to hear the noise of the approaching train or signals where they were walking on the track, on account of the noise made in the cut by the engine of the freight train standing on the side track." The engineer, Daniel Keever, testified as follows: That he had been an engineer running on this road since 1887. He was running the engine of the train, coming from the west, which killed intestates. He could see the men on the track, and they could see his engine at another bridge, three-quarters of a mile west of the bridge where they were killed, and that he gave the station blow there. He blew for the road crossing when he first saw them, just west of the tannery crossing. That the two men seemed unconcerned, and paid no attention to the alarms given; did not look around. That he could see that the engine on the side track was under steam, but could not see it was making any unusual noise. That it was blowing off steam, and that he could see the steam rising and smoke also from the engine, and knew it was obliged to make some noise. That he saw the engine on the siding when he passed the tannery (500 yards from it), and that he saw the men on the track when he was west of the tannery, and when at the same point saw the freight engine on the side track. He gave the signal 120 or 130 feet before he reached the intestates. That people usually got off 60 to 80 feet before he reached them. He attempted to stop the train as soon as he could after he saw they they were not getting off. He stopped the train in about 280 feet, and applied the emergency brakes for 300 feet, perhaps. That he "would consider 280 feet or 300 feet an extra good stop." Joseph R. Patton, one of the witnesses for the plaintiff, testified that the train, with the appliances in use and under the engineer's control, could, in his opinion, have been stopped within 100 yards. The defendant moved to nonsuit the plaintiff under the statute. The motion was refused, and defendant excepted. There was a verdict for the plaintiff upon the issue submitted to the jury. Judgment having been pronounced thereon, the defendant appealed.
A. C. Avery and Shepherd & Shepherd, for plaintiff.
S. J. Ervin, for defendant.
The question involved in this case has been before this court so many times that the law applicable to the facts as disclosed by the record has been as conclusively settled as perhaps any principle within the wide range of jurisprudence. The theory of the plaintiff, which was adopted by the court, proceeds upon the erroneous idea that a man who goes upon the track of a railroad company, not by its permission or license, but as a mere trespasser, is not bound to use both senses of sight and hearing, but only the latter. Every man in the possession of his natural faculties must know, and the law will not hear him say he does not know, that a railroad track is a place of constant and almost imminent danger. If he chooses to use it as a footway, when he is not expressly or impliedly invited to do so, he must understand that he does so at his peril and that he will at all times be menaced by trains moving to and fro upon the track. Generally speaking, 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 has in some way restricted that right, to the full and unimpeded use of it. The public have rights as well as the individual, and usually the former are considered superior to the latter. That private convenience must yield to the public good and public accommodation is an ancient maxim of the law. If we should for a moment listen with favor to the argument, and eventually establish the principle, that an engineer must stop or even slacken his speed until it may suit the convenience of a trespasser on the track to get off, the operation of railroads would be seriously retarded, if not practically impossible, and the injury to the public might be incalcuable. The prior right to the use of the track is in the railway as between it and a trespasser, who is apparently in possession of his senses and easily able to step off the track. This is a most reasonable rule, and if it should at this late day be abrogated, we would reverse one of the most salutary and fundamental maxims of the law. Every man must so use his own property as not to injure another, but this does not mean that a trespasser on a railroad track has any right to prevent the proper use of its track by a railway company. If an engineer sees that a person on the track, even though he be a trespasser, is not in the possession of either of his senses of sight or hearing, and therefore is unable to take care of himself, the maxim applies, and he must at once adopt such measures as common prudence requires to take care of him and to see that he is not injured. He must, of course, keep a constant lookout ahead as a general rule; for while no person has the right to use the track as a footway, except in the...
To continue reading
Request your trial