Cooper v. North Carolina R. Co.

• Decision Date: 12 December 1905
• Citation: 52 S.E. 932,140 N.C. 209
• Parties: COOPER v. NORTH CAROLINA R. CO.
• Court: North Carolina Supreme Court

52 S.E. 932

140 N.C. 209

COOPER v. NORTH CAROLINA R. CO.

Supreme Court of North Carolina

December 12, 1905

Syllabus by the Court.

Both the railroad when approaching a public crossing and the traveler on the highway are charged with the mutual duty of keeping a careful lookout for danger, and the degree of diligence to be used on either side is such as a prudent man would exercise under the circumstances of the case in endeavoring to perform his duty.

In an action for damages for the alleged negligent killing of plaintiff's intestate, an instruction that relieved the traveler of all obligation to look and listen when there had been a failure on the part of the defendant to give the ordinary signals, where there was evidence tending to show that there was an unobstructed view, is erroneous, and the fact that the court in other portions of the charge imposed on the plaintiff the obligation to look and listen whenever the view was unobstructed does not help the matter.

Evidence tending to show that the intestate was in a covered wagon and that he drove on the crossing without any stop whatever and with the wagon cover down on the side from which the train approached, and at a point just on the edge of the wagon road and 13 feet from the center of the railroad track one could see down the track from 500 to 1,200 feet, in the direction from which the trains approached, was sufficient for the consideration of the jury on the issue of contributory negligence.

A traveler on the highway, before crossing a railroad track, as a general rule, is required to look and listen to ascertain whether a train is approaching; and the mere omission of the trainmen to give the ordinary or statutory signals will not relieve him of this duty.

Where the view is unobstructed, a traveler who attempts to cross a railroad track under ordinary and usual conditions without first looking, when by doing so he could note the approach of a train in time to save himself by reasonable effort, is guilty of contributory negligence.

Where the view is obstructed, a traveler may ordinarily rely upon his sense of hearing, and if he does listen, and is induced to enter on a public crossing because of the negligent failure of the company to give the ordinary signals, this will usually be attributed to the failure of the company to warn the traveler of the danger, and not imputed to him for contributory negligence.

There may be certain qualifying facts and conditions which so complicate the question of contributory negligence that it becomes one for the jury, even though there has been a failure to look or listen, and a traveler may in exceptional instances be relieved of these duties altogether, as when gates are open or signals given by a watchman and the traveler enters on the crossing reasonably relying upon the assurance of safety.

In an action to recover damages for the alleged negligent killing of plaintiff's intestate, plaintiff's inventory of the personal property of her intestate and her annual account as administratrix are inadmissible for the purpose of showing intestate's capacity to earn and accumulate money.

Appeal from Superior Court, Caswell County; E. B. Jones, Judge.

Action by Mary W. Cooper, as administratrix, etc., against the North Carolina Railroad Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

Clark C.J., and Connor, J., dissenting.

In an action for death of plaintiff's intestate, who was struck by a train at a railroad crossing, an instruction erroneous in relieving the traveler of all obligation to look and listen when there was a failure on the part of the railroad company to give the usual and ordinary signals was not cured by the fact that the court qualified the words exempting the plaintiff from the obligation to look and listen by the words, "if he exercised that prudence and care which a prudent man would use under the circumstances," and by the fact that the instruction required the jury to find that deceased's failure to look was not the proximate cause of the injury.

Action to recover damages for alleged negligent killing of plaintiff's intestate. The ordinary issues in such actions were submitted. There was evidence of plaintiff tending to show that intestate was killed in attempting to drive his wagon over defendant's road at a public crossing, and by reason of the negligent failure on the part of defendant in giving the ordinary and usual signals at crossings, and that such negligence was the proximate cause of the injury. There was evidence of defendant tending to show that the ordinary and usual signals were given, and that the intestate was guilty of contributory negligence in driving on the crossing without having looked and listened for an approaching train, and when, if he had looked, the approach of the train might have been seen in time to have avoided the collision and prevented the death of the intestate. In response to prayer for instructions by plaintiff, the court on the issue as to contributory negligence charged the jury as follows: "Fourth. It is the duty of a railroad company to give the public due notice of the approach of its trains to a public crossing so that travelers may stop their teams, if necessary, and stay off the crossing until the train has passed. The train, if it gives the proper warning of its approach, and the railroad company is not otherwise at fault, is entitled to the right of way in preference to a traveler on the highway. The traveler has the right to expect such warning to be given to him, and he must look and listen when approaching a crossing and his failure to look and listen when such warning is given is negligence, and, if such failure should cause his death no recovery could be had for it. But, when the train does not give timely warning and reasonable warning of its coming, it is not contributory negligence in a traveler to go upon the track without looking and listening for the approach of a train, if he exercises that prudence and care which a prudent man would exercise under the circumstances, and, if the injury resulting is attributable to the negligence of the railroad company in failing to give the signals, for such failure would be deemed the proximate cause of the injury, if the jury should find from the evidence that with proper warning the traveler would not have attempted to cross. Therefore, if from the evidence you find that the railroad company failed to give timely warning of its approach to the crossing, by sounding the whistle or ringing the bell, and also find that the plaintiff's intestate went upon the crossing without looking and listening, his failure to look and listen under such circumstances would not be the proximate cause of his death, if, with the proper warning, he would not have gone upon the track, and if from the evidence you find such to be the facts, you will answer the second issue 'No'; that is, that the plaintiff's intestate was not guilty of contributory negligence." To this charge the defendant duly noted an exception. The court in substance repeated this statement in its direct charge to the jury. Verdict and judgment for the plaintiff. Defendant excepted and appealed.

Manly & Hendren, for appellant.

Kitchin & Carlton, for appellee.

HOKE J. (after stating the case).

The first portion of the instruction above quoted, which states the obligation on the railroad to give adequate warning when approaching a public crossing and the obligation on the traveler to look and listen in like case, is correct. As stated in Improvement Co. v. Stead, 95 U.S. 161, 24 L.Ed. 403: "Both parties are charged with the mutual duty of keeping a careful lookout for danger, and the degree of diligence to be used on either side is such as a prudent man would exercise under the circumstances of the case in endeavoring to perform his duty." The remaining portion of the instruction, however, addressed more particularly to the feature of contributory negligence, by fair and reasonable intendment can only mean that, though a traveler in approaching a railroad track is required to look and listen, yet this obligation is not upon him, nor will the consequence be imputed to him, if he failed to look and listen when such failure was caused by the negligent failure of the railroad train to give the necessary signals; and this where there was evidence tending to show that, if he had looked, he could have seen the approaching train in time to have avoided the collision, or at least to have saved himself by the exercise of reasonable effort. In this we think there was error which entitles the defendant to a new trial. It relieves the traveler of all obligation to look and listen when there is a failure on the part of the defendant to give the usual and ordinary signals, and places the entire responsibility for such a collision on the railroad company. It would, in effect, practically eliminate the defense of contributory negligence when there had been a negligent failure to give the warning; for ordinarily it is only by looking and listening that a traveler can inform himself of dangerous conditions. This is not a just principle by which the rights of parties in cases like the present should be determined, nor is it supported by any well-considered authority. The general rule is well stated in Beach on Contributory Negligence, as follows: "In attempting to cross, the traveler must look and listen for signals, notice signs put up as warnings, and look attentively up and down the track, and a failure to do so is contributory negligence, which will bar a recovery. A multitude of decisions of all the courts enforce this reasonable rule. It is also consonant with right reason and the dictates of ordinary prudence, and so much in...