Davis v. Southern Ry. Co.

• Decision Date: 12 January 1916
• Docket Number: 257.
• Parties: DAVIS v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

87 S.E. 745

170 N.C. 582

DAVIS v. SOUTHERN RY. CO.

No. 257.

Supreme Court of North Carolina

January 12, 1916

Clark C.J., and Hoke, J., dissenting.

Appeal from Superior Court, Wake County; Daniels, Judge.

Action by William Sidney Davis against the Southern Railway Company. Verdict for plaintiff was set aside and judgment of nonsuit entered, and plaintiff appeals. Affirmed.

Railroad whose heavy freight, drawn by two engines on upgrade at from 25 to 30 miles an hour, overtook plaintiff walking on ends of ties of parallel track 5 or 6 feet away, and drew him under the train so that his foot was cut off, held guilty of no negligence proximately causing the injury.

Injury to plaintiff, alleged to have resulted from being sucked under the defendant's heavy rapidly moving freight train held so unusual that the engineer could not have reasonably expected it would result from the rapid movement of the train, and hence such movement was not negligence.

The plaintiff, on July 17, 1910, it being Sunday, was walking with a companion, Tom Jennings, on that part of defendant's right of way, which lies between the city of Raleigh and Pullen's Park, which is about a mile west of defendant's station at Raleigh. There are two tracks laid on said right of way from Raleigh to Cary, about 8 miles distant, which tracks are parallel to each other, with 8 feet of space between the inside rails of each track, or those nearest to each other, the rails being about 1 1/2 feet from the ends of the cross-ties on the same side, leaving a space of about 5 or 5 1/2 feet between the ends of the cross-ties of the two railways. Plaintiff and Jennings were walking towards Pullen Park, in a westwardly direction, about 11 o'clock Sunday morning, Jennings between the rails of the Seaboard Air Line Railway track, which was laid on said right of way parallel with defendant's track, as above stated and plaintiff on the ends of the cross-ties next to defendant's track. Jennings heard a distant freight train coming on the defendant's track from the direction of Raleigh and going west. It was an interstate train, hauling cars through this state from Pinner's Point, Va., to Birmingham, Ala., and other cities in the South and West. There were 46 cars in the train, of which 45 were loaded with interstate freight, and at the time of the accident the train was proceeding from Selma, N. C., to Greensboro, having just before stopped at the Raleigh tank for water. The grade from the tank to Pullen's Park was a heavy one. The estimates of the speed of the train, at the time plaintiff was injured were conflicting, some witnesses testifying that it was as low as from 3 to 6 miles and others that it was as much as 25 to 30 miles. The train was drawn by two engines, called a "double header." When Jennings heard and saw the train coming in the same direction they were going, he warned the plaintiff by telling him to look out for it, the train being some distance from them when he first heard it. He stated that he thought they were a safe distance from the on-coming train. Sidney Davis testified that when he looked back, the two engines were abreast of them, and shortly afterwards he was drawn under one of the cars by the suction, which was caused by the speed of the train, and his leg mashed. There was some very strong and disinterested testimony for the defendant that the train was running slowly, under Boylan's Bridge, up the heavy grade, and that no suction could have been produced, and other evidence that, even at a greater rate of speed than 30 miles an hour, trains had frequently passed close to section hands, who were repairing the tracks, without any such effect being produced; also that the effect produced by a rapidly moving train would be merely to split the air and drive objects away from it, such as dust from the track, and hats from the heads of men standing near it; the force of the wind being away from the train rather than towards it. There was a verdict for the plaintiff, which the court set aside, for the reason that there was no evidence to support it, and entered a judgment of nonsuit. Plaintiff appealed.

W. H. Lyon, Jr., and Manning & Kitchin, all of Raleigh, for appellant.

A. B. Andrews, Jr., of Raleigh, for appellee.

WALKER, J. (after stating the facts as above).

The evidence must be considered in the view most favorable to the plaintiff. This court has held so frequently as to have made it an axiom of the law that a person using the track of a railroad company for a footway, whether as trespasser or licensee, does so subject to the undoubted and superior right of the railway company to have the unimpeded use thereof for the operation of its trains while serving the public in transporting passengers and freight. It is bound by the law to receive passengers and freight and to carry them, by the exercise of care and diligence, to their destination, and therefore it is not so much the railroad company which is thus favored and preferred by the law over a trespasser and licensee walking on or dangerously near its tracks as the public, although the railroad company has independently, rights and privileges with respect to its tracks and rights of way which are not permitted by the law to be abridged, in order to accommodate those who, for their own convenience, and at their own will and pleasure, use them as footways. By reference to the numerous cases, upon this subject, which have been decided by this court, it will be seen that it has been held positively, unequivocally, and uniformly by us that the principle which gives to the railroad company, while serving the public, this superior and exclusive right to the use of its tracks and its right of way is not in the least modified by anything having reference to the speed of the train (McAdoo v. Railroad Co., 105 N.C. 140, 11 S.E. 316; High v. Railroad Co., 112 N.C. 385, 17 S.E. 79; Abernathy v. Railroad Co., 164 N.C. 91, 80 S.E. 421; Ward v. Railroad Co., 167 N.C. 148, 83 S.E. 326, and cases therein cited), or to the fact that it was accustomed to run at a certain speed, nor because it was contrary to usage or custom to run on Sunday, if such was the fact in this case. A railroad company is not under any legal obligation to regulate the rate of speed of its trains for the convenience of those using its right of way, for its tracks are always places of danger, and the pedestrians, who can easily step aside and avoid any danger, should do so on the approach of a train. He cannot require the company to slow up any more than to stop. He must look out for trains and take care of himself, and the engineer has the right to suppose that he has done so, or that he will do so in time to save himself. He must expect trains at all times, for he does not control the schedules of the company, and, besides, it has the right to run extra trains and to use its tracks for its purposes at any hours it chooses in the transaction of its business as a public carrier, and cannot be lawfully obstructed or impeded in the prosecution of this right, or prevented from its free and full exercise, in order to take care of those who go upon its property as trespassers, or as licensees, who are there by sufferance only. It must not willfully or heedlessly injure them, but as they are not invited upon the right of way, in any sense other than that the railroad company had not taken steps to prevent its use by them as a footpath, they are required to look out for their own safety. Justice Avery, speaking for the court in High v. Railroad Co., 112 N.C. 385, 17 S.E. 79, said:

"Whether he saw the plaintiff at a distance of 150 yards or of 10 feet, he was not at fault in acting on the supposition that she would still get out of the way. It is not material whether the train was moving fast or slow in such a case as this. For present purposes the relative condition of the parties would have been the same had the engine been moving 50 miles an hour, and had she been discovered on the track at a distance that would be traversed in the same time that would have been consumed in going 10 feet at the rate of 10 miles an hour, unless additional liability should have been incurred by running so fast in a populous town."

And again, in the same case:

"If the plaintiff had looked and listened for approaching trains, as a person using a track for a footway should, in the exercise of ordinary care, always do, she would have seen that the train, contrary to the usual custom, was moving on the siding. The facts that it was a windy day, and that she was wearing a bonnet, or that the train was late, gave her no greater privilege than she would otherwise have enjoyed as licensee; but, on the contrary, should have made her more watchful."

He then goes on to say that, as the woman was apparently in possession of her normal faculties and her natural senses of sight and hearing, there was nothing which required the engineer to depart from the usual rule that the servant of the company is warranted in expecting that trespassers or licensees, seemingly of sound mind and body and in possession of their senses, will leave the place of danger till it is too late for him by stopping the train or slackening its speed, to prevent a collision, citing especially in support of these propositions, so thoroughly established in our law the cases of McAdoo v. Railroad Co., 105 N.C. 140, 11 S.E. 316, Meredith v. Railroad Co., 108 N.C. 616, 13 S.E. 137, and Norwood v. Railroad Co., 111 N.C. 236, 16 S.E. 4. In other words, it was held that if the mental and physical condition of the person on the track is such as to indicate that he is capable of caring for himself, the engineer is under no duty or obligation to take care of him by even slowing down his engine, and...