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...
