Cummings v. Atlantic Coast Line R. Co.
| Decision Date | 02 February 1940 |
| Docket Number | 677. |
| Citation | 6 S.E.2d 837,217 N.C. 127 |
| Parties | CUMMINGS v. ATLANTIC COAST LINE R. CO., Inc. |
| Court | North Carolina Supreme Court |
Civil action for recovery of damages for alleged wrongful death. C.S. § 160.
Plaintiff alleges that the intestate Howard Cummings was killed on the night of 17 August, 1938, when one of the trains of defendant ran over him and that his death "was caused by the negligence of the defendant in that it operated its train at a terrific and unlawful and negligent rate of speed, in that it did not equip its train with proper lights and proper brakes so that it could stop the train after seeing or having an opportunity to see plaintiff's intestate, in that the agents of the defendant did not keep an active and proper lookout, and did not cause the train to be stopped after seeing or having an opportunity to see plaintiff's intestate on the track, in that defendant did not blow its whistle or horn or give any warning that it was approaching and in that defendant was negligent of its duty in keeping a proper lookout or in its duties toward mankind that it did not stop after running over and killing plaintiff's intestate." Defendant denies the material allegations of the complaint, and pleads the contributory negligence of intestate in bar of any right to recover herein.
On the trial below plaintiff offered evidence tending to show that her intestate, Howard Cummings, twenty seven years old and an able-bodied farmer, lived with his family in a house on the farm of Russell Livermore, situated on the west side of and about forty five yards from the double railroad track of defendant, and about two and a half miles north of Pembroke in Robeson County, North Carolina; that from said house the track is straight for three miles to the south and for a mile and a half to the north; that for a distance of five hundred yards south, and a mile north the track is level; that trains running north travel on the east track and those running south on the west track; that the highway from Pembroke to Red Springs runs parallel to and between three hundred and five hundred yards east of the railroad that a farm road about eight feet wide extends from this highway to and across the railroad at a point near the house in which plaintiff's intestate resided; that in getting from the highway to said house one "would use the plantation road"; that neither the road nor the crossing is public nor "kept up by the county"; and that while there were cotton and corn fields on each side of the track, the right of way was clear for twenty feet on each side thereof.
Evidence for plaintiff further tended to show that; About noon on 17 August, 1938, her intestate left his home walking to the highway to meet a man and to go to Lumberton "to see his tobacco sold"; that he rode to Lumberton on a truck operated by one Brock Jacobs, who drove for Mr. Livermore that about five o'clock in the afternoon he was seen riding in the truck with Jacobs about three miles from and in the direction of Pembroke, and was later seen in Pembroke that he did not return to his home, but he was seen that night in Lumberton drinking beer; that about 10:30 o'clock that night when last seen alive, in so far as the evidence reveals, he was standing with Brock Jacobs outside of Sally Jane's Cafe in Lumberton "in a drunken, staggering condition"; that between six and seven o'clock the next morning his wife discovered his mangled remains on the east side of the northbound track, a few yards north of the farm road crossing over the railroad near his home, and that since then but before the trial below Brock Jacobs was killed.
Plaintiff's evidence further tends to show that the left hand was entirely cut off; that both legs were almost severed at the ankle; that there was a hole in the back of the head and another in the back; that the body was otherwise bruised; that his hat and the severed hand were found on the crossing, the hand resting, as testified by the wife, between the two tracks and by others between the rails of the east or northbound track; that blood, brains and hair were seen on the crossing on the outside rail of east track; that the body lay a few feet from the track, with feet nearer to track than the head; that the hat and the hand were between the blood and the body; that right off the track north of the crossing and of the body there were some tobacco sheets, that is, sheets intestate used to cover tobacco as it was carried to market; that the sheets were "torn all to pieces" and ground up; and that "there was sign of it at the crossing".
Plaintiff further offered in evidence that portion of defendant's answer which reads: "that if plaintiff's intestate was struck or injured by a train of this defendant, (which is expressly denied), then, at the time plaintiff's intestate was struck he was a trespasser upon the right of way and tracks of defendant; that he carelessly and negligently lay down or placed himself upon the tracks of the defendant with full knowledge of the extreme peril of his position".
There is evidence for plaintiff tending to show that the wife of intestate, who admittedly slept a part of the night, and of others residing...
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