Carlton v. Wilmington & W. R. Co

• Decision Date: 09 December 1889
• Citation: 10 S.E. 516,104 N.c. 366
• Court: North Carolina Supreme Court
• Parties: Carlton v. Wilmington & W. R. Co.

10 S.E. 516

(104 N.c. 366)

Carlton

v.Wilmington & W. R. Co.

Supreme Court of North Carolina.

Dec. 9, 1889.

Railroad Companies—Injuries to Stock—Appeal.

1. In an action against a railroad company for the negligent killing of plaintiffs mare, the court did not err in refusing to charge that it was not required of the engineer, in running his train, to stop when stock were on the ground near his track, and in charging instead that it was his duty to keep a lookout for stock on the track in daylight, and. when discovered, to use all the means he could, consistent with the safety of the passengers, to avoid injuring or killing it.¹

2. An instruction that, if defendant used every effort to stop the train and avoid the accident after the mare was discovered, there was no negligence, was properly so modified as to make the test of negligence, not whether defendant used proper effort after the mare was discovered, but whether he did so after she could have been discovered by the exercise of a proper outlook.

8. A person has no right to complain because the exact language of his prayer is not given, if it is given substantially.

4. An exception to a " charge as given, " without specifying error, will not be considered.

Appeal from superior court, Duplin county; Bynum, Judge.

Action by W. C. Carlton against the Wilmington & Weldon Railroad Company for the negligent killing of plaintiff's mare. Judgment was enrered on a verdict for plaintiff. Defendant appeals.

Haywood & Haywood, for appellant. W. R. Alien, for appellee.

Clark, J. It was not controverted on the evidence that the plaintiff's mare was knocked off a railroad embankment in the day-time by defendant's passenger train, and killed. The plaintiff's evidence tended to show that the mare, by a proper lookout, could have been seen by the engineer a distance of a mile and a half, the railroad being very straight at that point, and running through a level country. One of the plaintiff's witnesses testified that he saw the mare on the embankment, on the walk by the side of the track, when the train was a half mile off; that the embank-ment was 150 yards long, 10 feet high, and very steep; that the whistle did not blow till the engine was within 50 yards of the mare; that she jumped, and almost immediately was struck by the train; and that no effort was made to stop the train or slacken its speed. The testimony of defendant went to show that the mare came up the embankment 20 yards ahead of the engine, and too late to stop the train, which could not have been stopped, at the rate it was going, under 350 yards. There were no exceptions to the evidence.

The instructions asked by defendant were given by the court, except the following: First. It is not required of an engineer in running trains to stop his train when persons are on the ground near the track, nor is there greater deference due to livestock than to human beings. Second. If the defendant used every effort to stop the train and avoid the accident after the mare was discovered, then there was no negligence, and the plaintiff cannot recover. Third. If an engineer in charge of the locomotive drawing a train discovers cattle either upon the track, or approaching the same, as if they were coming upon the track, blows his whistle, reverses his engine, and does all in his power to stop, and fails to do so, he is not negligent, and the plaintiff cannot recover.

The court, in lieu thereof, instructed the jury that "it was the duty of the defendant to keep a lookout for stock on the track in daylight, and when discovered to use all the means it could, consistent with the safety of the passengers and the operators on the train, to avoid injuring or killing them; that the main questions for the jury in this case were: (1) Was the horse on the track of the defendant company sufficiently long, after she could by the exercise of an ordinarily diligent outlook be seen by defendant or its employes running the train, to have been discovered, for the train to have had its speed slackened, or, if necessary to prevent the killing, stopped? (2) Were all the means that could, with safety to the passengers and operators, have been used, used by the defendant,...