Bradley v. Ohio River & C. Ry. Co.
| Citation | 36 S.E. 181,126 N.C. 735 |
| Parties | BRADLEY v. OHIO RIVER & C. RY. CO. |
| Decision Date | 29 May 1900 |
| Court | United States State Supreme Court of North Carolina |
Appeal from superior court, McDowell county; Allen, Judge.
Action by J. S. Bradley, as administrator of the estate of Sarah J Kanipe, deceased, against the Ohio River & Charleston Railway Company, to recover damages for the negligent killing of plaintiff's intestate. From a judgment for plaintiff defendant appeals. Affirmed.
Where issues are submitted to the jury, an instruction that plaintiff cannot recover cannot be granted.
P. J Sinclair and Locke Craig, for appellant.
The plaintiff's intestate, Mrs. Kanipe, was a passenger on the defendant's road, who had just gotten off the train at Henrietta station. She took passage on the hack of one Higgins to go to Henrietta Mills. It was necessary to cross the railroad track a few yards in rear of the train from which she had just alighted. The train backed, but was concealed from view by a line of box cars on a side track; and the backing train ran over the hack, killing Mrs. Kanipe. The jury found that the intestate was killed by the negligence of the defendant in backing its cars on the crossing without giving timely signals, and without keeping a reasonable lookout, and "kicking" its cars back over the crossing without reasonable and proper means to stop the train in case of danger; that the intestate was not guilty of contributory negligence,--and assessed the amount of damages. Appeal by defendant.
Exceptions 1-5, 7, and 10 to evidence, and 2, 3, and 5 to the charge, present the question whether it is competent to prove the custom of the defendant as to where it stopped its train and discharged its passengers, and the custom of the defendant and the public in using the crossing where the plaintiff's intestate was killed. This was competent, both upon the question of negligence of the defendant in backing its train, as to the notice to be given, and whether the intestate was guilty of contributory negligence in attempting to cross. "A crossing which the public have been habitually permitted to use" is treated as a public highway crossing. Russell v. Railroad Co., 118 N.C. 1098, 24 S.E. 512, and cases cited. The evidence showing that it was the custom of the company never to back its trains over this crossing after passing it was material in determining what degree of care was required when backing contrary to custom, and in showing that the intestate had a right to rely upon the custom of the company not to back its train (Blackwell v. Railroad Co., 111 N.C. 151, 16 S.E. 12, 17 L. R. A. 729), unless notice was given.
Exceptions 8 and 9 were to evidence that the conductor in charge of this train knew of the custom of hackmen crossing at this crossing after his train had passed it, and that he had notified the witness, who was foreman of the stables employing the hackman, that hacks could pass at that crossing after the train had once cleared it, and that the latter had so notified the hackman who drove Mrs. Kanipe. The evidence was competent and pertinent.
Exceptions 6, 13, and 14 to evidence are clearly without merit, and need no discussion.
Exceptions 11 and 12 were to the admission of evidence tending to show that the hack and the body of Miss Kanipe, who was injured at the same time, were pushed back by the train. The evidence was offered, and, the judge stated, was admitted only as a part of the res gestæ, as evidence tending to show what stopped the train; that it was detached from the engine, "kicked back," and was only stopped by this obstruction. The defendant's contention was that the train could not have been stopped so soon if the engine had been (as plaintiff alleged) detached.
Exception 15 is to the rejection of proposed testimony by the witness Horne as to statements made by one Coxe, who had testified for the defendant. So far as he corroborated Coxe, by showing that he had theretofore made similar statements to his testimony on the stand, the testimony was competent, and was admitted by the court; but when the defendant wished to go further, to show other statements made by Coxe, not testified to by him on the stand, it was mere hearsay, and did not come within any exception to the rule which rejects hearsay evidence, and was properly refused.
The exceptions to the issues cannot be sustained. The framing of the issues is largely left to the sound discretion of the trial judge. When the issues submitted arise on the pleadings, and every phase of the contention of the parties can be presented thereunder, they are not subject to review. Pretzfelder v. Insurance Co., 123 N.C. 164, 31 S.E. 470, 44 L. R. A. 424; Willis v. Railroad Co., 122 N.C. 905, 29 S.E. 941; Williams v. Gill, 122 N.C. 967, 29 S.E. 879.
The defendant's prayers for instructions numbered 1, 3, 5-16, 21, 22, and 24, so far as they were correct, were given, in substance, in the charge. The judge was not required to use the exact language of the prayer. See cases cited in Clark's Code (3d Ed.) p. 539. In lieu of the twentieth prayer, the court properly charged: "If you find from the evidence that this was a crossing where the public had been habitually permitted to cross, and with a sanction and knowledge of the defendant, then it became the duty of the defendant, before it backed its cars on the crossing, to give signals that it intended to do so, and to give them in time for persons approaching the crossing to avoid the danger; and if the defendant failed to give any signal when it backed its cars upon the crossing, or failed to give them in time to warn a person who was in the exercise of ordinary care, and the killing followed as a direct result, then it was a negligent act, and you should answer the first issue, 'Yes."' Prayers for instructions numbered 2 and 4 were that there was no evidence to support the allegations therein contained, and the plaintiff cannot recover thereon. Under our system of issues being submitted, a general prayer that "the plaintiff cannot recover" should never be granted. Witsell v. Railway Co., 120 N.C. 557, 27 S.E. 125, and other cases cited in Clark's Code (3d Ed.) p. 535. Upon the issues found, the court adjudges, as a matter of law, whether the plaintiff shall recover judgment. Besides, in this case the court could not tell the jury that there was no evidence to support the allegation referred to.
Prayers 17 and 18 were that the court should tell the jury that two isolated facts, if facts, would not be negligence. Possibly it would not have been error to have given these prayers though it is the weight of authority that whether a flagman ought to have been at the crossing was a question for the jury. Railway Co. v. Ives, 144 U.S. 408, 12 S.Ct. 679, 36 L.Ed. 485. But the court is not called upon to express an opinion upon each isolated fact,--whether it per se would be negligence or not; and a failure to do so is not reversible error when, as here, the court has placed before the jury every phase of the circumstances which the defendant contended was true, as a whole, and instructed the jury properly in...
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