Bogan v. Carolina Cent. R. Co.

Decision Date29 October 1901
Citation39 S.E. 808,129 N.C. 154
PartiesBOGAN et ux. v. CAROLINA CENT. R. CO.
CourtNorth Carolina Supreme Court

Appeal from superior court, Richmond county; Moore, Judge.

Action by J. S. Bogan and wife against the Carolina Central Railroad Company. Judgment for plaintiffs. Defendant appeals. Affirmed.

Though a person was negligent in going on the trestle of a railroad the company is liable for her injury there by a train, if the engineer, by the exercise of ordinary care, could have discovered her danger, and prevented the accident.

W. H Day, for appellant.

Jas. A Lockhart, for appellees.


This is an action for the recovery of damages for injuries received by the plaintiff by being knocked off a trestle by the defendant's train. The issues and answers thereto were as follows: "(1) Was Della Ann Bogan injured by the negligence of the defendant? A. Yes. (2) Did she, by her own negligence, contribute to her injury? A. Yes. (3) Notwithstanding her negligence, could the defendant, by the exercise of ordinary care, have prevented the injury? A. Yes. (4) What damages, if any, has plaintiff sustained? A $1,500." The defendant asked the court to direct a verdict in its favor upon all the issues. As the evidence was conflicting, this request was properly refused. Spruill v. Insurance Co., 120 N.C. 141, 27 S.E. 39; Gwyn Harper Mfg. Co. v. Carolina Cent. R. Co., 128 N.C. 280, 38 S.E. 894, and cases therein cited. The able counsel for the defendant contended that, as the plaintiff testified that she was walking upon the trestle on Sunday afternoon with a man whom she has since married, and in whom she was then "deeply interested," neither of them was in a mental condition to see or hear anything except each other, and their going upon the trestle in such a frame of mind was negligence per se. The learned counsel for the plaintiff seems to tacitly admit this proposition, but contends that, as the jury have found that the defendant, by the exercise of ordinary care, could have prevented the injury notwithstanding the negligence of the plaintiff, this court should not deny to a young bride expectant the protection which the English court of exchequer extended to a hebbled donkey browsing in the public highway. The court charged the jury that, if they believed the evidence, they would find that the plaintiff was guilty of contributory negligence, and they so found. The plaintiff, having won the case, does not appeal.

The charge was full and explicit, and, as far as we can see without error. Its essential features are substantially embodied in the following extracts: "That the burden of proving by the greater weight of evidence the first, third, and fourth issues was upon the plaintiff." "That if the jury found from the evidence that the defendant's servants in charge of the engine either discovered, or by exercising ordinary care might have discovered, that the plaintiff was walking upon the trestle, and was so situated that she could not, without peril, owing to her position on the trestle and the length and height of the trestle, get off the trestle in time to escape the train moving as it was, and that the defendant's servants in charge of the engine could, by the exercise of ordinary care, have stopped the train, and avoided the accident, after seeing the plaintiff in the place of peril on the trestle, or after they should have seen her and failed to do so, and the plaintiff was injured thereby, they should answer the first issue 'Yes."' "It was not the duty of defendant, through its engineer, to lesson the speed of its train as it approached the trestle, until he had reasonable grounds to believe that the female plaintiff was on the trestle, and not capable of caring for herself; and that if the jury find that as soon as the engineer discovered, or by the exercise of ordinary care could have discovered, that the female plaintiff was upon the trestle, and in a place of danger, he did all in his power to stop the train, they will answer the first issue 'No' and the third issue 'No."' "If the engineer saw the female plaintiff while upon the track, and not upon the trestle, of defendant, walking in front of the engine, which was moving, he had the right to assume she would get off the track, and take care of herself up to the last moment, and it would not be his duty to slack the speed or stop the train until he had reason to believe she was upon the trestle; and, if the female plaintiff was injured under such circumstances, the law will impute it to her own negligence, and you will answer the first issue 'No' and the third issue 'No."' "If the plaintiff was guilty of contributory negligence, and if the jury find from the evidence that the defendant could, by the exercise of ordinary and reasonable care, have avoided the injury, and failed to do so, and had the last clear chance to so avoid it, then the jury will answer the third issue 'Yes."' "You must be governed by the instructions applicable to the third issue, which have already been read, just as though they were now reread." All these instructions were excepted to by the defendant, but we do not see how any of such exceptions can be sustained under our long and unbroken line of authorities from Gunter v. Wicker, 85 N.C. 310, to the present time. The principle was fully settled at least as far back as Pickett v. Railroad Co., 117 N.C. 616, 23 S.E. 264, 30 L. R. A. 257, 53 Am. St. Rep. 611, where the doctrine is elaborately discussed. Among the more recent cases may be cited Fulp v. Railroad Co., 120 N.C. 525, 27 S.E. 74; McLamb v. Railroad Co., 122 N.C. 862, 29 S.E. 894; Cox v. Railroad Co., 126 N.C. 103, 35 S.E. 237; Arrowood v. Railroad Co., 126 N.C. 629, 36 S.E. 151. The defendant excepted to the submission of the third issue, but such an issue was necessary for a proper determination of the case. Its form was practically suggested by this court in ...

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