Davis v. Piedmont & N. Ry. Co.

• Decision Date: 22 January 1924
• Docket Number: 450.
• Citation: 120 S.E. 827,187 N.C. 147
• Parties: DAVIS v. PIEDMONT & N. RY. CO. ET AL.
• Court: North Carolina Supreme Court

120 S.E. 827

187 N.C. 147

DAVIS v. PIEDMONT & N. RY. CO. ET AL.

No. 450.

Supreme Court of North Carolina

January 22, 1924

Appeal from Superior Court, Gaston County; Long, Judge.

Action by Hattie Davis, administratrix of Jeff Davis, deceased against the Piedmont & Northern Railway Company and another. Judgment for plaintiff, and defendants appeal. Reversed.

The last clear chance doctrine applies only where one originally guilty of contributory negligence in going on a railroad track is down and helpless or apparently in such a perilous position that ordinary effort on his part will not save him in which case failure of trainmen, who saw or by exercising proper care could have seen and noted his position, to do what was required in the exercise of reasonable care to avert the injury under the conditions presented, will be regarded as the sole proximate cause of the injury.

The facts in evidence tended to show that on the morning of January 11, 1921, about 10 o'clock plaintiff's intestate, while walking along defendant's railroad track, several hundred feet beyond a crossing, was run over and killed by a train of defendant company, operated at the time by Vernon Rogers, as codefendant. There was evidence on part of plaintiff to the effect that the customary signals for the crossing of the public county road were not given and also that the motorman at the time was not properly attentive to the conditions of the track ahead of his train.

There was much evidence on part of defendants in denial of this testimony of plaintiff, and tending to show that the motorman was alert and attentive to his duties at the time, and that full crossing signals were given. But the jury have decided this against the defendant, and for the purposes of the disposition the court makes of the case, plaintiff's evidence in this respect, in any event, must be accepted as true.

On denial of liability and plea of contributory negligence etc., there was verdict for plaintiff assessing her damages, and defendants excepted and appealed, assigning errors, among others: (1) The refusal of their motion to nonsuit; (2) the refusal to give defendants' prayer for instructions that if the jury should find the facts to be as testified to by witnesses, viewed in the light most favorable to plaintiff, they should answer the issues tending to fix liability for defendants, applying the prayer in terms to each of the said issues.

W. S. O'B. Robinson, Jr., of Charlotte, for appellants.

Felix E. Alley, of Waynesville, R. L. Sigmon, of Gastonia, McKinley Edwards, of Bryson City, and Mangum & Denny, of Gastonia, for appellees.

HOKE J.

The decisions in this state have been very insistent upon the principle that a pedestrian voluntarily using a live railroad track as a walkway for his own convenience is required at all times to look and to listen, and to take note of dangers that naturally threaten and which such action on his part would have disclosed, and if in breach of this duty and by reason of it he fails to avoid a train moving along the track and is run upon and killed or injured, his default will be imputed to him for contributory negligence, and recovery is ordinarily barred. Wyrick v. R. R., 172 N.C. 549, 90 S.E. 563; Ward v. R. R., 167 N.C. 148, 83 S.E. 326, L. R. A. 1918E, 451; Exum v. R. R., 154 N.C. 413, 70 S.E. 845, 33 L. R. A. (N. S.) 169; Beach v. R. R., 148 N.C. 153, 61 S.E. 664; Neal v. R. R., 126 N.C. 634, 36 S.E. 117, 49 L. R. A. 684; High v. R. R., 112 N.C. 385, 17 S.E. 79; McAdoo v. R. R., 105 N.C. 140, 11 S.E. 316.

In Wyrick's Case, supra, it was said:

"The intestate of the plaintiff was a school girl on her way to school with other girls on a dirt road alongside the defendant's right of way, and, seeing the train approach went upon the track in an intervening cut. The other children climbed the side of the cut and avoided injury; but the intestate, while leaving the track for a place of safety, where there was sufficient room for the train to pass, caught her foot in a switch rod, and was struck by the locomotive and killed. Held, a motion as of nonsuit upon the evidence should have been allowed, upon the principle that the employees on defendant's train had the right to assume, up to the last moment, that the intestate, in full possession of her faculties, would leave the track and avoid the injury. In this case there was no evidence that the engineer was negligent or that he could have avoided the injury after seeing the intestate's peril."

In Neal's Case, it was said:

"If plaintiff's intestate was walking upon defendant's road in open daylight, on a straight piece of road, where he could have seen defendant's train for 150 yards, and was run over and injured, he was guilty of negligence. And although the defendant may have also been guilty of negligence in running its train at a greater rate of speed than was allowed by the town ordinance, or in not ringing its bell as required by said ordinance, and in not keeping a lookout by its engineer as it should have done, yet the injury would be attributed to the negligence of the plaintiff's intestate."

In Exum's Case, supra, it was said in the concurring opinion:

"If it be conceded that the defendant in this case was negligent, I concur in the decision, for the reason that, accepting all of plaintiff's evidence as true, and taking every permissible inference arising on the entire testimony and which makes for his claim, as established, it appears that when he was killed the intestate was voluntarily walking along the main line of defendant's track, at a time and place where a train might be expected any moment, in broad daylight, in the full possession of his faculties, and with nothing to restrain or hinder his movements, without paying the slightest attention either to his placing or surroundings. There is nothing, therefore, to qualify the obligation that was upon him to be careful of his own safety, and, to my mind, it presents a typical case of contributory negligence, negligence concurring at the very time of the impact, and recovery by plaintiff is therefore properly denied."

The position is modified in proper instances where the injury occurs at a crossing of a public road, and where the mutual rights and duties of the parties are at times of differing nature. Johnston v. R. R., 163 N.C. 431, 79 S.E. 690, Ann. Cas. 1915B, 598; Cooper v. R. R., 140 N.C. 209, 52 S.E. 932, 3 L. R. A. (N. S.) 391, 6 Ann. Cas. 71. And to this class of decisions may be referred the case of Lapish v. Director General, 182 N.C. 593, 109 S.E. 852. There plaintiff, when injured, was not voluntarily using the track for a walkway, but, approaching the railroad at a public crossing and finding his way locked by a train of defendant company, in the endeavor to walk around this obstruction he was momentarily upon the track and was run on and hit by another train coming around a sharp curve without warning of any kind. As said in the concurring opinion of Walker, Judge:

"Defendant's engine approached him suddenly and without warning, and under circumstances and surroundings requiring notice of its approach to be given. He was not, therefore, a mere trespasser or licensee, but was acting in the exercise of his legal right."

Another qualification is presented when one is required to be on or upon the track in the line of his duties, particularly when being performed for the company. In such case and in exceptional instances the question of contributory negligence may be for the jury. See Sherill v. R. R., 140 N.C. 252, 52 S.E. 940, cited and approved in numerous cases since, as in Wyne v. R. R., 182 N.C. 253, 109 S.E. 19; Perry v. R. R., 180 N.C. 290, 104 S.E. 673; Elliott v. Furnace Co., 179 N.C. 145, 101 S.E. 611; Goff v. R. R., 179 N.C. 221, 102 S.E. 320.

And so in Morrow v. R. R., 147 N.C. 623, 61 S.E. 621, 16 L. R. A. (N. S.) 642, where a pedestrian was using the track as a walkway in the city of Hickory, at a place where it was customary so to use the track, and was run on by the company's engine in the nighttime and injured, and there was evidence tending to show that the engine in question had no lights and had given no signal warning of any kind, it was held that the question of contributory negligence was for the jury. Approved in principle in Norris v. R. R., 152 N.C. 512, 67 S.E. 1017, 27 L. R. A. (N. S.) 1069. In those and other like decisions the pedestrian by default of the company was in a position where "to look and to listen," the ordinary way that the...