Butts v. Atl. & N. C. R. Co

• Decision Date: 29 September 1903
• Citation: Butts v. Atl. & N. C. R. Co, 45 S.E. 472, 133 N.C. 82 (N.C. 1903)
• Court: North Carolina Supreme Court
• Parties: BUTTS. v. ATLANTIC & N. C. R. CO.

45 S.E. 472

133 N.C. 82

BUTTS.

v.ATLANTIC & N. C. R. CO.

Supreme Court of North Carolina.

Sept. 29, 1903.

RAILROADS—ACCIDENTS AT CROSSINGS—FAILURE TO SIGNAL—NEGLIGENCE—PROXIMATE CAUSE—INSTRUCTIONS.

1.Where the evidence is conflicting, but, construed most favorably to plaintiff, affords more than a scintilla of proof tending to establish his case, a nonsuit is properly refused.

2.A locomotive engineer's failure to ring the bell or sound the whistle on approaching a public highway crossing is evidence of negligence.

v 2.SeeRailroads, vol. 41, Cent. Dig. 5§ 990, 994.

3.On an issue whether defendant negligently ran its engine against plaintiff and injured him, an instruction is erroneous which makes the defendant's liability depend on its negligence, without regard to whether such negligence was the proximate cause of the injury.

Appeal from Superior Court, Craven County; Ferguson, Judge.

Action by Z. V. Butts against the Atlantic & North Carolina Railroad Company.From a judgment for plaintiff, defendant appeals.Reversed.

W. C. Munroe and Simmons & Ward, for appellant.

L. J. Moore and D. L. Ward, for appellee.

DOUGLAS, J.This is an action to recover damages for personal injuries received by the plaintiff, who was struck by a train operated by the defendant, and thrown from his wagon.There was testimony tending to prove that the plaintiff was traveling along a public highway within the corporate limits of the city of New Berne where the highway crossed the track at an acute angle, both the plaintiff and the train going in the same relative direction: that no signal for the crossing was given either by bell or whistle; that the plaintiff stopped, looked, and listened, and heard nothing.In view of this evidence, both the defendant's motions to nonsuit were properly refused, as were also the prayers for the direction of the verdict.There was conflicting evidence, but any such conflict must be reconciled or determined by the jury alone, the constitutional triers of fact.All that this court can say is that, taking the evidence of the plaintiff as true, and construing all the evidence in the light most favorable to the plaintiff, there was more than a scintilla of evidence tending to prove his contention.Printing Co. v. Raleigh.126 N. C. 516, 36 S. E. 33;Mfg. Co. v. Railroad, 128 N. C. 280, 38 S. E. 894, 83 Am. St Rep. 675;Boggan v. R. Co., 129 N. C. 154. 39 S. E. S08, 55 L. R. A. 418;Gordon v. Railroad, 132 N. C. 565, 44 S. E. 25.

It is well settled by the repeated adjudications of this court that the "failure of an engineer in charge of a locomotive to ringthe bell or sound the whistle on approaching the crossing of a public highway, or a point where the public have been habitually permitted to cross, " is at least evidence of negligence.Hinkle v. R. Co., 109 N. C. 472, 13 S. E. 884, 26 Am. St. Rep. 581;Russell v. R. Co., 118 N. C. 1098, 24 S. E. 512;Fulp v. R. Co., 120 N. C. 525, 27 S. E. 74;Norton v. Railroad, 122 N. C. 910, 29 S. E. 886;Powell v. Railroad, 125 N. C. 370, 374, 34 S. E. 530;Edwards v. Railroad, 132 N. C. 99, 43 S. E. 585.The engineer is not obliged to do both, but must do one or the other, as circumstances may require.For instance, in going through a city at a slow rate of speed, it would be sufficient to ring the bell, especially if blowing the whistle were forbidden by ordinance.On the contrary, in running through the country at a high rate of speed, where the ringing of the bell could not be heard at a sufficient distance to be of any practical benefit, ordinary prudence would seem to require the whistle to be blown.The object of the law is not to impose unnecessary burdens upon the engineer, but simply to require such notice of the approaching train as will enable travelers upon the public highway to cross the track in reasonable safety—certainly without unnecessary danger.

In Edwards v. Railroad, 129 N. C. 78, 39 S. E. 730, this court has said: "We think that the testimony of...