Brendle v. Spencer

• Citation: 34 S.E. 634,125 N.C. 474
• Parties: BRENDLE v. SPENCER et al.
• Decision Date: 19 December 1899
• Court: United States State Supreme Court of North Carolina

34 S.E. 634

125 N.C. 474

BRENDLE v. SPENCER et al.

Supreme Court of North Carolina

December 19, 1899

Appeal from superior court, Swain county; Starbuck, Judge.

Action by Thomas Brendle against S. Spencer and others, receivers. Judgment for plaintiff. Defendants appeal. Affirmed.

Where a locomotive whistle is blown at an unusual place, for the purpose of frightening horses, which are being watered in a stream at one side, and thereby causes injury to one with the horses, the company is liable therefor.

G. F Bason and F. H. Busbee, for appellants.

T. H Cobb, R. L. Leatherwood, and G. S. Ferguson, for appellee.

DOUGLAS J.

This is a civil action for damages against the defendants, as receivers of the Richmond & Danville Railroad Company, caused by the alleged negligent and willful conduct of the defendants' servant in frightening horses driven by the plaintiff. The plaintiff alleged in his complaint that while driving a pair of horses to a hack, one-half mile up the Tuckaseigee river from Bryson, City, he went into the mouth of Deep creek to water his horses, and that, while his horses were so being watered, the defendant ran one of its trains over the trestle crossing Deep creek, and willfully wantonly, and maliciously blew its engine whistle for the purpose of frightening plaintiff's horses; that it did frighten them, causing them to run out of the mouth of the creek into the river, and to injure plaintiff. He further charged that the defendant negligently blew the whistle at an unusual place, all of which was denied by the defendant. Issues submitted to, and responses of, the jury: "(1) Did defendant's engineer or fireman wantonly, wrongfully and intentionally sound the whistle of the engine for the purpose of frightening the horses the plaintiff and in charge, and was the plaintiff injured thereby? Yes. (2) Was the plaintiff injured by the negligence of the defendant? Not answered. (3) Did the plaintiff, by negligence of his own, contribute to his injury? Not answered. (4) What damage has plaintiff sustained? $1,200." The following is all the charge of the court that appears in the record: The court charged as follows upon the first issue: "To answer first issue, 'Yes,' the burden is upon the plaintiff to prove, by the greater weight of evidence, that the engineer blew the whistle maliciously or wantonly, as I will presently explain, and thereby frightened and caused the horses to run into the river, and injured the plaintiff. If the whistle was blown for the purpose of frightening the horses, it must have been either a malicious or a wanton act. If with a desire to cause injury, it was malicious; if in a spirit of sport or indifference to the consequences, it was wanton. So far as the element of malice or wantonness is concerned, the question for you to determine is whether the whistle was blown for the purpose of frightening the horses. To find that the blowing was malicious or wanton, you must find, in the first place, that the engineer had seen plaintiff and the horses, or that the fireman had seen them and informed the engineer. Even though you should find that the engineer had knowledge of the presents [presence] of plaintiff and the horses, the evidence would not warrant you in finding malice or wantonness if the whistle was blown at about the usual place and in a usual manner. Therefore, to answer first issue, 'Yes,' you must find that it was blown at an unusual place or in an unusual and unnecessary manner. I do not mean to say if it was blown at an unusual place or in an unusual manner you ought to find that it was blown maliciously or wantonly, or, in other words, for the purpose of frightening the horses, but merely that, unless you do find that the place or the manner was unusual, there would not be sufficient evidence upon which to answer the first issue, 'Yes.' If you do find that the place or manner of the blowing was unusual, then that fact is to be considered by you in connection with all the evidence in determining whether the whistle was blown to frighten the horses, and it is a matter altogether for you as to what, if any, weight shall be given to the fact. To sum up, if you are satisfied, by the great weight of the evidence, that the engineer had knowledge of the presence of plaintiff and the horses; that he blew the whistle at an unusual place or in an unusual manner; that his purpose was to frighten the horses; and that he did frighten, and cause them to run into the river, and thereby injure the...