Bullock v. Wilmington & W.R. Co.

• Decision Date: 10 March 1890
• Citation: Bullock v. Wilmington & W.R. Co., 10 S.E. 988, 105 N.C. 180 (N.C. 1890)
• Parties: BULLOCK v. WILMINGTON & W. R. Co.
• Court: North Carolina Supreme Court

10 S.E. 988

105 N.C. 180

BULLOCK v. WILMINGTON & W. R. Co.

Supreme Court of North Carolina

March 10, 1890

This was a civil action tried at the fall term, 1889, of the superior court of Edgecombe county, before BOYKIN, J.The plaintiff in his first cause of action complained and alleged that he was the owner of a portable steam-engine and boiler which he was attempting to have drawn across defendant's track by two teams of oxen, when defendant's servants negligently ran an engine and train over said portable engine and boiler.In the second cause of action he alleged that it was the duty of the defendant to keep up a certain crossing over its track, and defendant neglected to do so, in consequence of which said engine and boiler was injured in the attempt to transport them over said road at said crossing.The defendant denied generally each allegation of the first cause of action, except the allegation as to the existence of the corporation, and set up contributory negligence.In answer to the second cause of action, the defendant admitted the obligation to keep the crossing in repair, denied negligence, and charged contributory negligence.The issues and findings were as follows "(1) Was the steam-engine and boiler mentioned in the complaint injured by the negligence for the defendant?Answer.Yes.(2) What damage has the plaintiff sustained?A $600."

The plaintiff claimed damages for the destruction of his portable steam-engine by the negligence of the defendant.George W Harper, a witness for plaintiff, testified: "I was ginning cotton for Bullock last fall with a portable engine drawn by four oxen.On the 25th day of October, 1888, I was driving the same, with assistance of three men, from a point in Edgecombe to a point in Nash county, when I had occasion to cross the line of the defendant's railroad track at a public crossing known as 'Trevathan's Crossing.'As I approached the crossing, I stopped the team, and went upon the track to see if any train was coming from any direction.I could have seen a train more than a thousand yards in the direction of Battleboro.I have measured it since then, and a man standing on the track at the Trevathan crossing can be seen by another standing on the track one thousand and seventy yards north of that point.I had been working in the neighborhood for some time, and knew the time the south-bound train usually passed the point.I had a watch with me this day, but did not look to see the time.I think the train was behind time this day, and I thought it had passed when I reached the crossing.I went upon the track to see if there was any train coming from any direction frequently there were special trains.Neither seeing nor hearing any train, I then undertook to cross the track.The crossing was very bad.The approach to the track on the Edgecombe side was slightly elevated, and the rise from the level of the ground to the top of the railroad iron was about nine inches.The team pulled the first wheels of the engine over the nearest rail, and when they struck the further rail, and the hindmost wheels the first rail, the engine got stalled.I had no time to try and get the team over, because just at this time I saw the south-bound train, coming from the direction of Battleboro, turn the curve one thousand and seventy yards distant, and I thought it best for me to run up the track and wave down the train.I at once ran up the middle of the track in the direction of the approaching train, waving a red handkerchief over my head.The train did not slacken in its speed until within about one hundred yards of the crossing, when the engineer jumped from the engine on the right, and a colored man jumped on the left.After knocking the obstruction off the track, the hindmost car stopped at the crossing.The oxen were in good order.They had only come about a mile that day, and I thought they could pull the engine across without much difficulty.They had often pulled out of worse places, and had frequently pulled over railroad crossings."The plaintiff offered other testimony to the effect that the crossing was in bad condition; that the rise from the level ground to the top of the railroad iron was from six to eleven inches; that the crossing was, in effect, no crossing; that one of the witnesses had occasion to put planks in the crossing in order to haul cotton on, and had found it bad for crossing with light vehicles; that the engine weighed 2,700 pounds; that an engineer could have seen the team and engine stalled upon the track as soon as he turned the curve, which was estimated by one witness, who had not measured it, as from 600 to 800 yards; by another, who had stepped it, as 1,150 yards; and by two, who had actually measured it, it was said to be 1,070 yards; that as soon as the engineer turned the curve he could have recognized that the team and the engine upon the track was stalled; that when within about 100 yards of the crossing the engineer reversed the engine, applied all means to stop the train, and jumped from the engine.It was in evidence on the part of the defendant, from the testimony of the section-master of the defendant's road, of the attorney of the road, who visited the crossing a few days after the accident, of several other employes of the road, that the crossing in question was in good condition; as good as the other crossings upon the same section of road.It was testified to by the engineer in charge of the train that as soon as he turned the curve he saw the obstruction upon the track, and the man running up the track waving his handerkchief; that he had been running trains on the defendant's road for 17 years, and that he did not know whether the curve was 200 or 1,200 yards from the crossing; that he blew the regular signal at the whistle post, which was some 300 or 350 yards from the crossing; after that he blew the cattle signal, and then reversed the engine, and used every appliance to stop the train; that, seeing it was then impossible to stop the train, he jumped off the engine; that the train was equipped with the best appliances known to science,and the train could not have been stopped in less than 350 or 400 yards, was on schedule time, and going 35 miles per hour.It was in evidence by the fireman that he called the engineer's attention to the obstruction on the track when 600 yards distant from it.

Counsel for defendant requested the judge to charge the jury: "(1) That in law, if the jury believed the evidence introduced in behalf of the plaintiff, he is guilty of contributory negligence, and is not entitled to recover in this action.(2) That, when the engineer of defendant's train first saw the team of oxen and vehicle upon the railroad track, the law did not require him to stop or slacken the speed of the train until he realized that the team of oxen and vehicle were stalled, or could not get off the track.(3) That if you believe the defendant's engineer did all in his power to stop the train, and at once, when he realized that the team of oxen and engine were stalled, the defendant was not guilty of negligence, and plaintiff cannot recover.(4) That if the engineer, so soon as he saw the man on the track waving at him, did everything in his power to stop the train, the defendant was not guilty of negligence, and plaintiff cannot recover."

The court gave the third prayer, and, among other things, charged the jury: "That it was required of the plaintiff, his agents and servants, that they should exercise due and proper caution in crossing, or attempting to cross, the defendant's track, to learn whether there were any approaching trains, and to notice the condition for safety of the railroad crossing.If the crossing was in such condition as to suggest to a man of ordinary prudence and caution under all the circumstances of the case, and considering the distance at which approaching trains could be seen, the difficulty or danger of attempting to cross with such a team and such a burden, then it was their duty to forbear, and their entering upon the track under such circumstances would make the plaintiff guilty of contributory negligence; and if the engineer of defendant company, in the exercise of reasonable care, was unable to avoid the accident, then the plaintiff would not be entitled to recover.If when the engineer first discovered that the team and engine on the track was stalled (the plaintiff having entered upon the track under such circumstances as made him guilty of...