Bessent v. Southern Ry. Co.
| Decision Date | 11 June 1903 |
| Citation | 44 S.E. 648,132 N.C. 934 |
| Parties | BESSENT v. SOUTHERN RY. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Forsyth County; Neal, Judge.
Action by J. C. Bessent, as administrator of Fanny Scales, deceased against the Southern Railway Company. From a judgment in favor of defendant, plaintiff appeals. Affirmed.
Plaintiff's intestate was walking along a railroad track with a companion in the daytime, which was commonly used by the people in that vicinity as a footpath. Plaintiff's intestate was warned of a train approaching from the rear, which she could have seen and heard, and answered the warning indicating that she knew of its approach. The whistle was blown and the bell rung, but intestate failed to leave the track, whereupon she was struck and killed. Held, that intestate was guilty of contributory negligence as matter of law, which precluded a recovery for death.
This action was brought by the plaintiff to recover damages for the alleged negligent killing of the intestate by the defendant. The plaintiff's intestate, Fanny Scales, was walking along the track of defendant near Winston in the direction of Wilkesboro, accompanied by Will Smith, when an engine, pushing four box cars, approached from the south. There was evidence tending to show that the whistle was sounded twice, and that the intestate could have heard it and could also have heard the noise of the train, and that she could easily have seen the train in time to have stepped from the track to a place of safety. There was nothing to prevent her doing so. Persons farther away from the train than the intestate was at the time she was killed both saw and heard it. William Hairston, a witness for the plaintiff testified: The train coming up through the cut made a great deal of noise, and persons could easily have looked back and seen the train if they had eyes, and could have gotten off if they wanted to. Will Smith had the intestate by the hand or wrist; she was on the sills of the track, and he was walking on the ground beside the sills. They seemed to be walking along, laughing and talking. She could have stepped off on either side of the track. If she had ordinary hearing she was bound to have heard the train. The plaintiff himself testified: When the girl was killed she could easily have gotten from the track, more easily to the left than to the right. Any person could easily have gotten off the track; all they had to do was to step off; they could easily have stepped off and been out of danger; between the two tracks it is level, and she could easily have stepped off. The evidence also tended to show that the intestate was killed near the end of a cut which was directly under the place where Main street was when it ran over the embankment and before the embankment was cut down for the railroad track; but the cut had not been used as a street, though it had been used by pedestrians "as a common footpath" when going from one of the factories to the northwest portion of Winston. In reference to this matter the plaintiff testified: This cut does not pretend to be a street; part of Main street used to be where this cut is, and they have narrowed that street very much, and on the west side of the cut, up on the embankment there is still a driveway; this street is 35 feet higher than the track; people walk along the track as they do everywhere.
The ordinance of the city of Winston provides that it shall be unlawful for trains and locomotives to run at a greater speed than eight miles an hour, and the intestate was killed within the city limits. The train was running 20 miles an hour when the intestate was killed, and it was in the daytime. There were two men on the end of the front or leading box car, who waved their hands and hallooed to the intestate and her companion as the train approached them. A witness, Ida Douglas, testified that she was on the track and heard the train blow at the south end of the cut; she ran to the switch and got off; as she passed the intestate she said to her, "Fanny, the train is coming," to which the intestate replied, "All right, honey." The intestate remained on the track, and was killed by the train. At the close of the plaintiff's testimony, the defendant moved for judgment of nonsuit under the statute. The court intimated that it would charge adversely to the plaintiff, whereupon he submitted to a nonsuit and appealed.
The plaintiff assigns as errors: (1) That the court refused to submit the plaintiff's third issue as to the last clear chance of the defendant to avoid the injury, which issue, it is stated in the record, was submitted in apt time. (2) That the court allowed the defendant's motion to nonsuit the plaintiff. (3) That the court directed the jury to answer the second issue "Yes" and the third issue "Nothing."
The issues referred to were: (1) Was plaintiff's intestate injured by the negligence of the defendant? (2) Did plaintiff's intestate contribute to her own injury? (3) What damage, if any, is plaintiff entitled to? And plaintiff's third issue was that, notwithstanding plaintiff's intestate's contributory negligence, could defendant, by proper and due care, have prevented the killing of plaintiff's intestate?
J. S. Grogan, for appellant.
Glenn, Manly & Hendren, for appellee.
WALKER, J. (after stating the case).
If the court dismissed this action upon the defendant's motion, or if, in deference to an adverse intimation of the court, the plaintiff submitted to a judgment of nonsuit and appealed, this court must consider all the evidence for the plaintiff "as true, and regard it in the most favorable light" for him, as stated by this court in Collins v. Swanson, 121 N.C. 67, 28 S.E. 65. The rule that, where there is a nonsuit in submission to an intimation of the court against the plaintiff's right to recover, the evidence introduced by the plaintiff must be taken as true for the purpose of deciding whether, in any reasonable view of it, he can recover, has frequently received the sanction of this court. Springs v. Schenck, 99 N.C. 551, 6 S.E. 405, 6 Am. St. Rep. 552; Gibbs v. Lyon, 95 N.C. 146; Abernathy v. Stowe, 92 N.C. 217. All of the witnesses in this case were introduced by the plaintiff, and he represented, therefore, that they were credible. The law will not permit him to impeach their credibility, although he could have shown, if he had been disposed and able to do so, that the facts were different from those to which they testified. It is stated in the case that the plaintiff submitted to a nonsuit because the court intimated that it would so charge the jury that they would have to answer the first issue "Yes," the second issue "Yes," and the third issue "Nothing," but it does not clearly appear what particular form the charge of the court would have taken if it had been delivered to the jury. We cannot infer, from the statement in the record, that the court intended to direct a verdict peremptorily for the defendant, and the only inference we can draw from the language is that the court would have charged the jury that if they believed the evidence they should answer the issues as already indicated.
The question, then, is whether, if the evidence is taken as true, there is any reasonable view of it which would entitle the plaintiff to a trial of the issues by a jury, the evidence being considered in the most favorable light for him. In Neal v. Railroad, 126 N.C. 641, 36 S.E. 119, 49 L. R. A. 684, the court, referring to facts similar to those we have in this case, says:
All the evidence in this case, as we have stated, was introduced by the plaintiff, and there is no contradiction in it. It is plain, direct, and conclusive in establishing negligence on the part of the plaintiff's intestate, which was the proximate cause of her death. It can make no difference whether he has failed to show negligence of the defendant, or whether, having shown such negligence, he has also shown by his own proof that the intestate's negligence was concurrent, up to the last moment, with that of the defendant, or that, after the defendant was seen or could have been seen to be negligent, the intestate had the last clear chance to avoid the injury. In either case the plaintiff would not be entitled to recover. The case discloses that the situation of the plaintiff's intestate was such as enabled her to see and hear the train, as it approached her, in ample time for her to have left the track and averted the injury which caused her death.
We are unable to distinguish this case from Neal v. Railroad, supra. The facts in our case appear to be much stronger for the purpose of establishing contributory negligence than the facts in that case were. A brief statement of the facts will suffice to show that the death of the plaintiff's intestate was caused by her own negligence, and that the case of Neal v. Railroad, supra, should apply...
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