Daily v. Richmond & D.R. Co.

• Decision Date: 28 April 1890
• Citation: 11 S.E. 320,106 N.C. 301
• Parties: DAILY v. RICHMOND & D. R. Co.
• Court: North Carolina Supreme Court

11 S.E. 320

106 N.C. 301

DAILY v. RICHMOND & D. R. Co.

Supreme Court of North Carolina

April 28, 1890

Appeal from superior court, Catawba county; CLARK, Judge.

The suit was brought by Hiram Daily, an idiot, against the Richmond & Danville Railway Company, for damages for personal injuries inflicted by a train at a street crossing in the town of Hickory. At the close of the testimony for the plaintiff the court ruled that it would direct a verdict for the defendant, whereupon the plaintiff submitted to a nonsuit, and appealed. At the crossing there was a narrow-gauge track running parallel with the defendant's road. Upon this track, extending across the passway, some cars were standing at the time. Daily came from that side and could not see an approaching train until he had passed around the end of the narrow-gauge cars. It was six feet from the narrow-gauge to the Richmond & Danville track; and, while passing this clear space, Daily did not look up or stop to listen, but kept straight on, and was struck by the bumper of a passing train. Several witnesses said they did not hear the bell ring or the whistle blow, but were not positive that both did not occur. Another testified that he heard the whistle blow. The evidence tended to show that the train was running about 20 miles an hour.

In an action against a railroad company for personal injuries inflicted by a train at a crossing, the evidence for the plaintiff showed that upon another company's track, which ran parallel with that of defendant, cars were standing over the passway, so that plaintiff could not see the approaching train until he had gone round the end thereof, but that after doing so, although there was a clear space of six feet before reaching defendant's track, he did not stop or look up. Held, that plaintiff was negligent; and, in the absence of evidence of negligence on the part of the engineer, it was not error to direct a verdict for the defendant.

D Schenck and George F. Bason, for appellee.

AVERY J.

We concur with the court below in the opinion that the plaintiff is not, in any view of the testimony, entitled to recover. He could not, according to the evidence, have seen the approaching train until he stepped off the narrow-gauge road and was within six feet of the main track along which it was coming. There is no testimony tending to show how near it was to him when he attempted to cross; and it would have been...