Clark v. Wilmington & W.R. Co.
| Decision Date | 15 December 1891 |
| Citation | 14 S.E. 43,109 N.C. 430 |
| Parties | CLARK v. WILMINGTON & W. R. Co. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Johnston county; SPIER WHITAKER, Judge.
Action by O. E. Clark against the Wilmington & Weldon Railroad Company for civil damages for the death of plaintiff's decedent. On trial to a jury plaintiff had judgment, and defendant appeals. Affirmed.
It was not error in the court to recapitulate fairly such contentions of counsel as illustrated the bearing of the evidence on the issues.
Aycock & Daniels and W. C. Munroe, for appellant.
Pou & Pou, for appellee.
The main question presented by the statement of the case on appeal and ably and elaborately argued by the counsel on both sides was whether in any phase of the testimony the court should have permitted the jury to pass upon the issues involving the question of defendant's negligence. The plaintiff contends that there was ample evidence to warrant the findings of the jury, in response to the first issue that his intestate was killed by the negligent running of the defendant's train; and, in response to the third issue that, notwithstanding the negligence of his intestate, the injury might have been avoided by the exercise of proper care and prudence on the part of the defendant company's engineer. The defendant assigned as error the failure of the court to instruct the jury that there was not sufficient evidence to justify an affirmative response to said issues. So that, if a collocation of detached portions of the testimony would prima facie tend to show that the engineer was negligent, and that by such precaution as a man of ordinary prudence would have taken he could have prevented the collision, it was the duty of the court to submit the issues to the jury, and they were justified, in the exercise of their exclusive right, in responding to them as they did. Sheridan v. Brooklyn etc., Co., 36 N.Y. 39; Kenyon v. Railroad Co., 5 Hun, 481. The engineer, according to the testimony of all the witnesses, could see the trestle on which the intestate was killed for a mile before he reached it. George Ricks, a witness for the defendant, deposed that the train approached from the north. Jackson Lassite, a witness for the plaintiff, testified that there was a mile-post at the north end of the trestle, and that the engineer going south could tell that a man was on the trestle when his engine was four or five hundred yards distant from it; that the plaintiff's intestate was stricken by the engine near the south end of the trestle, which was 125 feet long, and thrown about 25 yards south of it, and down an embankment; that the train could have been stopped within 150 yards; and that the witness looked when the danger signal was given, and the train was then 450 yards from the trestle; but the witness, looking at it, could see no diminution of its speed when it reached the trestle; just as the witness Moore stated that he could see no "slack up" of the train till it reached the trestle. Ervin Ricks, deposing in behalf of the defendant, could not say that the train "slowed up" any before it struck him, though he could see its approach distinctly, and that the plaintiff's intestate was running in the middle of the track when he first saw him, just after the whistle blew. The defendant's engineer testified that when the signal was given, at a distance of 100 yards, the plaintiff's intestate acknowledged it by stopping and looking back at the engine; that he was still north of the trestle, had not reached it, but turned, and went towards the trestle, still on the outside of the track, and when the engine was 50 yards north of the trestle he stepped upon the track at or near the north end of it for the first time; that he then applied the brakes, but struck deceased 10 or 12 feet from the north end. The defendant's fireman thought the train was not stopped for 200 to 250 yards beyond where Clark was stricken, while he thought the alarm was given 100 yards north of the trestle. The intestate began to run, according to Rick's statement, along the middle of the track on the trestle when the signal was blown. There was testimony to the effect that the frame of the trestle was from 8 to 11 feet above the ground, and that a very active man might have escaped injury by jumping upon a cap.
The jury were not bound to find that the whole of the testimony of any witness was true; and it is immaterial whether they thought any given one was mistaken as to his recollection or observation of some matters and accurate as to other facts, or was false in part and credible as to other statements. Any one of several theories arising out of the evidence may have been adopted by the jury. They may have concluded that Lassiter was to be believed when he stated that Clark was killed at the south end of the trestle, after the engine had traversed its whole length, and not near the north end, as the engineer stated; and that theory may have been strengthened by finding it to be true that the intestate was thrown up into the air, and at the same time received such an impetus forward as to land his body 25 yards further at the side of the embankment. They had a right to conclude from the evidence, which we have stated, that deceased was on the trestle in the middle of the track when the whistle blew and the bell rang, and they had testimony sufficient to warrant the belief that at that very moment the engine was 450 yards from the trestle, and could have been stopped in 150 yards. The jury were justified in concluding as a fact that the engineer did not, as a witness testified, perceptibly slacken his speed in the least till he struck Clark; and this theory would be sustained by defendant's own testimony (that of the fireman Jones) that the train ran on 200 to 250 yards after striking him before it was fully stopped, while it could have been brought to a stand-still within 150 yards, (according to the evidence of Lassiter, which the jury had a right certainly to believe,) as they had a right to fix a lower estimate as the true one. If the foregoing is a fair summary of the facts that the jury might have found as a part of a special verdict, then we may assume for out present purpose that any theory arising out of it is a true embodiment of their findings. Suppose the engineer saw the plaintiff's intestate, after looking back in acknowledgement of the danger signal, rushing along the middle of a trestle 125 feet long, with no means of escape till he should reach the south end of it, except till he should reach the south end of it, except by jumping 11 feet (the height on the south side) to the ground, or the display of unusual activity by jumping upon a cap, and that he ran his engine 300 yards while Clark was still running along the center of the track on the trestle. He could have stopped it within the remaining 150 yards, if not sooner, before even reaching the north end of the trestle; but, when there was no longer any doubt that intestate was fully committed to risking his life in the effort to cross because of his persistent movement south on the track, while the engine advanced 300 yards after the signal was given, the engineer rushed recklessly onward without the slightest diminution of speed. But if, by any calculation as to the relative progress of two bodies in motion on the same road, the jury concluded that the train was nearer to the trestle when the alarm was given, there is no possible method by which we can legitimately tell whether they fixed that distance at 450, 150, 100, or 50 yards. If it was 150 yards, and Lassiter was to be believed, then the engineer could (after the deceased made his purpose apparent by looking at the engine and then moving forward) have stopped at the very northern extremity; or if they thought 100 yards was the distance, as the engineer testified, the engine would have been brought down to a slowpace, and within nine yards of a full stop, when it came in contact with intestate, so that the force of the collision might not have been sufficient to do him serious injury, if he was stricken at the south end of the trestle. Suppose the jury believed that the estimate of the distance by the engineer, who thought he blew 100 yards and put on the brakes 50 yards from the north end, was correct, then he could have stopped in 150 yards, the force of the engine would have been greatly reduced after the use of all appliances for 100 yards, and it might have been considered by them but a faire inference that the blow would no have been fatal, if harmful at all, when the collision should come, had the engineer used every effort to stop consistent with safety, immediately on giving the alarm. If he could have stopped the engine in less than 100 yards, he might have saved intestate's life, whether he put on brakes at 50 or 100 yards. For we must bear in mind also that it was decided in Deans v. Railroad Co., 107 N.C. 686, 12 S.E. Rep. 77, that the jury were not bound to adopt the estimate of the witness or to hear expert testimony as to the distance within which an engine might be stopped, but could determine that question, as one addressed to their common sense, for themselves. By fixing that distance at more or less than 150 yards,--the estimate of the conductor being that it would require 400 to 500 yards,--and varying the finding as to speed from 30 to 50 miles per hour, according to the conflicting testimony, an infinite number of combinations might have been made by the jury as to the different questions of distance and speed and force, giving rise to endless inferences from them.
It was in evidence that deceased was lame, but was running in the middle was of the track on the trestle. It was the...
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