Cox v. Norfolk & C. R. Co

• Decision Date: 06 March 1900
• Citation: 126 N.C. 103,35 S.E. 237
• Court: North Carolina Supreme Court
• Parties: COX v. NORFOLK & C. R. CO.

35 S.E. 237

126 N.C. 103

COX

v.NORFOLK & C. R. CO.

Supreme Court of North Carolina.

March 6, 1900.

RAILROADS—INJURY TO TRESPASSER—ACTION —TRIAL—EVIDENCE.

1. The admission of evidence of an expert railroad builder, in an action for death of person on track, as to the time within which an engine could be stopped, is not error.

2. The admission of evidence by a witness as to experiments made by him at the same place, tending to show how far a man could be

seen down the track on a moonlight night, is not error.

3. The failure of the court to instruct the jury that the omission of the defendant to call a witness should not be considered, in rendering their verdict, is not error.

4. The court is not required to instruct the jury in the exact words of a party, if the general charge fairly presents the contentions and issues.

5. Where plaintiff admits contributory negligence of one killed on railroad track, it was proper to submit the issue whether, notwithstanding the negligence of the intestate, the defendant, by the exercise of due care, could have prevented the killing.

Faircloth, C. J., dissenting.

Appeal from superior court, Halifax county; Allen, Judge.

Action by J. S. Cox, administrator, against the Norfolk & Carolina Railroad Company, for wrongful death. From a verdict for plaintiff, defendant appeals. Affirmed.

Thos. N. Hill and Day & Bell, for appellant

E. L. Travis, W. A. Dunn, and Claude Kitchin, for appellee.

DOUGLAS, J. The essential facts in this case are practically the same as they were when the case was before this court at its September term, 1898, reported in 123 N. C. 604, 31 S. E. 848. Our opinion in that case settles many of the exceptions now brought up, and especially those relating to the sufficiency of evidence and the submission of issues. There are 37 exceptions by the defendant, one being numbered 13 1/2, and it is manifestly impracticable to discuss each one separately. There was sufficient evidence on all the issues to go to the jury, and the issues have been too often approved by this court in similar cases to be any longer subject to serious question. Their form was substantially suggested by this court in Denmark v. Railroad Co., 107 N. C. 185, 189, 12 S. E. 54, and in fact they are the natural outgrowth of the doctrine of the last clear chance. This doctrine, first distinctly announced in Davies v. Mann, 10 Mees. & W. 545, was adopted in this state in Gunter v. Wicker, 85 N. C. 310, and has now become the settled rule of this court. McLamb v. Railroad Co., 122 N. C. 862, 877, 29 S. E. 894. See, also, Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct 653, 35 L. Ed. 270; Pulp v. Railroad Co., 120 N. C. 525, 27 S. E. 74.

As the plaintiff' admitted contributory negligence, the third issue, which the defendant sought to have withdrawn, was not only proper, but necessary. It is as follows: "(3) Notwithstanding such negligence on the part of the said intestate, could the defendant, by the exercise of due care and prudence, have prevented the killing?"

We see no error in the admission of Smith's testimony, which was substantially corroborated by the engineer, Sanford, a witness for the defendant

The witness Cox testifies that he had made certain experiments to see how far down the track a man could be seen. This was objected to by the defendant but we...