Currie v. Golconda Mining Co

• Decision Date: 12 January 1916
• Docket Number: (No. 488.)
• Citation: 87 S.E. 523
• Court: North Carolina Supreme Court
• Parties: CURRIE et al. v. GOLCONDA MINING CO. et al.

87 S.E. 523

CURRIE et al.

v.GOLCONDA MINING CO. et al.

(No. 488.)

Supreme Court of North Carolina.

Jan. 12, 1916.

Appeal from Superior Court, Montgomery County; Shaw, Judge.

Action by J. C. & James A. Currie against the Golconda Mining Company and another. Plaintiffs sued in two causes of action: The first to recover $5,000, due under a written contract with Oscar M. Allen, Jr., and guaranteed in specified way by the other defendant, the Mining & Milling Company; second, for $600, alleged to be due for purchase of a sawmill and some other property. There was a verdict for plaintiffs on the first cause of action against both defendants. Judg ment on the verdict and defendant Oscar M. Allen, Jr., excepted and appealed. Affirmed.

U. L. Spence, of Carthage, for appellant.

W. C. Grace, of Kalamazoo, Mich., J. A. Spence, of Asheboro, and Jerome & Jerome, of Greensboro, for appellees.

PER CURIAM. The court has carefully examined the record, and finds no valid reason for disturbing the results of the trial. It was contended for defendant Allen that, while he had obligated himself in a written contract to pay plaintiff the sum of $5,000, he had subsequently satisfied this obligation by assigning to plaintiff his rights in another written contract between him and his co-defendant, the Mining Company, and that plaintiffs had accepted this assignment in satisfaction of the original demand. This position was determined by the jury against defendant Allen, and, as stated, we find no error in the trial; certainly none that gives the appellant any just ground of complaint.

The judgment for plaintiff is affirmed.

No error.

Appeal from Superior Court, Cumberland County; Allen, Judge.

Action by Susan W. Horne and George W. Home, administrators, against the Atlantic Coast Line Railroad Company to recover for wrongful death. From a judgment of nonsuit, plaintiffs appeal. Reversed.

This is an action to recover damages for wrongful death, alleged to have been caused by the negligence of the defendant. The plaintiff's intestate was a section foreman of the defendant. He had been at work at New Berlin, and on the night he was killed he and other employes of the defendant went to Farmers on a hand car. He was killed on his return at night by an engine of the defendant, which, according to the evidence of the plaintiff, had no headlight.

The evidence of the plaintiffs tended to prove that their intestate was a section foreman in the defendant's employ at New Berlin on September 1, 1914. On that night he took the lever car and went to Farmers to attend to some business, as there was no train in that direction, and took with him live or six hands. He did not say whether the business was his or the business of the company. He waited for the passenger train to pass, and then they put the lever car on the track and started back to New Berlin; the track was straight at that point for 10 miles, 5 miles in each direction, and, according to plaintiffs' evidence, they were looking out, both front and rear, for any approaching train, though there was none scheduled to pass at that hour; they could have seen a headlight 5 miles off. Suddenly, 35 to 40 feet in front of them, out of the darkness, there loomed up an engine which was running without any light at all, and at the rate of 50 or 60 miles an hour; that an alarm was given and everybody jumped off but the intestate, Horne, who was struck and killed; the engine was going so fast that it went half a mile or at least a third before it stopped. A witness said that he could have seen a headlight on a straight track that night 10 or 12 miles. The witness further said that the lever car could be seen from the engine at least three-quarters of a mile off under the glare of an electric headlight. He further testified that there were three public crossings between the station at Farmers and where Horne was killed, and that the engine did not blow at either of these crossings or ring any bell. In going from New Berlin to Farmers they went on the main line 5 miles east in the direction of Wilmington; they started about 7:30 p. m., and got there about 8:10 p. m., and started back at midnight. The witness further said that some foremen used their lever cars at night, but it was not an habitual custom. There was no evidence from the plaintiff that it was against the rules of the company to use the lever cars at night. Several witnesses testified that the night was slightly foggy, but there was no light whatever on the engine, and, if there had been, they could have seen it; that there were neither headlights nor sidelights; that if the engine had a headlight the engineer could see three-quarters of a mile ahead of him; that the witness had ridden on an engine with an electric headlight many times and kept a lookout and could see at night three-quarters of a mile ahead under the electric light. That the deceased said that he was going down to Farmers to see the agent, and that his force had to move from New Berlin the next morning. The witnesses also testified that if there had been an electric headlight on the engine, they could have seen it 2 or 3 miles down the track, in ample time to have gotten the car off the track, which they could have done in a couple of minutes.

The defendant introduced a rule of the company forbidding the use of hand cars at night or in foggy weather without the permission of the roadmaster, and the roadmas-ter testified that he had not given permission to use the car on the night the intestate was killed. The defendant also introduced evidence tending to prove that the engine was properly equipped with lights, and that signals were sounded at the several crossings.

At the conclusion of the evidence his honor entered judgment of nonsuit, and the plaintiff excepted and appealed.

Cook & Cook, J. M. Williford, and Sinclair, Dye & Ray, all of Fayetteville, for appellants.

Rose & Rose, of Fayetteville, for appellee.

ALLEN, J. The evidence for the plaintiff, which must be accepted as true for the purpose of. nonsuit, establishes the negligence of the defendant in that it was running its train in the nighttime without a headlight, and it is conceded that the judgment of nonsuit cannot be sustained except upon the ground of contributory negligence. There are two valid objections to coming to this conclusion.

The first is that, while after much discussion the rule was adopted that a judgment of nonsuit might be entered if it clearly appeared from the evidence of the plaintiff that he was guilty of contributory negligence, this rule has never been extended so as to permit the consideration of evidence offered by the defendant tending to prove contributory negligence. In this case, the negligence attributed to the plaintiff's intestate is that he was upon the track in violation of the rules of the company, and there is nothing in the plaintiff's evidence to show that a rule was in existence or that the intestate was at the time of his death violating any rule.

The burden of the issue of contributory negligence was on the defendant, and in order to sustain this burden it introduced a rule of the company which forbids the use of the handcar at night without the permissionof a superior officer, and it also introduced the officer to prove that he had not given the permission. If this evidence, coming from the defendant, was not believed by the jury, the issue of contributory negligence could not have been answered against the plaintiff, and the jury alone has the right to say whether or not the evidence is true. This principle is vital under a system, which makes jurors triers of the fact, and a departure from it would invest the judge with the power to pass on the weight of the evidence and to determine the fact.

The second is that, if it be conceded that the intestate was guilty of negligence, the question of proximate cause was for the jury and ought to have been presented to them either under a separate issue, or under an instruction that although the plaintiff was upon the track in violation of the rules of the company and was therefore negligent, that he would be entitled to recover damages, if, notwithstanding that negligence, the jury found as a fact that if the defendant had had a headlight the intestate would have been discovered in time to avoid the injury, or that if the headlight had been present the plaintiff's intestate would have seen it in time to take the car from the track.

The evidence on the part of the plaintiff tends to prove that the track of the defendant in the direction from which the train was coming was straight for a distance of 5 miles; that the headlight could have been seen at that distance; that those on the hand car were looking in that direction for the approach of a train; that if there had been a headlight they could and would have seen it in time to take the handcar from the track; and that with a headlight the engineer could easily have seen the car In time to avert the injury.

In Heavener's Case, 141 N. C. 245, 53 S. E. 513, the court approved an instruction that "if the jury should further find from the evidence that if there had been a proper light upon the engine, or if the bell had been ringing, the intestate would have had notice of the approaching train in time to escape the danger, " and if the plaintiff by reason of not having "such notice or warning * * * was injured, then such failure to have the headiight or other proper signal was * * * continuing negligence, and would be the proximate cause of the injury, " and this was affirmed in Shepherd v. Railroad, 163 N. C. 520, 79 S. E. 968.

If the plaintiff's intestate was negligent in violating a rule of the company, was his negligence greater than the negligence of a person who is killed while upon the track in a state of voluntary drunkenness? It would seem not, and in Griffin v. Railroad, 166 N. C. 626, 82 S. E. 974, it was held that the question of the contributory negligence of one killed upon...