Deans v. Wilmington & W.R. Co.

• Decision Date: 06 November 1890
• Citation: 12 S.E. 77,107 N.C. 686
• Parties: DEANS v. WILMINGTON & W. R. CO.
• Court: North Carolina Supreme Court

12 S.E. 77

107 N.C. 686

DEANS v. WILMINGTON & W. R. CO.

Supreme Court of North Carolina

November 6, 1890

Civil action for damages tried before MACRAE, J., at March term 1890, of Wayne superior court. The issues were: (1) Was B. F Deans (the plaintiff's intestate) killed by the negligence of the defendant? (2) Did he by his own negligence contribute to his death? (3) What damage, if any, is the plaintiff administratrix entitled to recover? The plaintiff introduced the following evidence. W. A. Deans testified that "deceased was between 33 and 34 years old. I went to the scene of the accident about 2 P. M.; half-hour after it occurred. The train usually passed that spot about 12 M. I found B. F. Deans [plaintiff's intestate] lying on the ground across the ditch, about 10 feet from the track: his head was mashed to pieces, and there were signs, on the rails, of his having been run over on the side of the track on which the engineer sat in his cab. It is two miles from Goldsborough to the first curve in the road. The place where he was killed was between 300 and 400 yards from the first curve towards Goldsborough. There is gravel of a light color on the footpath on the outside of the rails, and people walk there. It was a showery day. I think I could have seen a man three-quarters of a mile off. Deceased had on a dark overcoat, but I don't recollect the color of his pants. The path I spoke of is between the ditch and the end of the cross-ties, and the road-bed is gravel, with a white sandy gravel. I don't know that it was slippery where he was killed." Witness further testified as to the value of the life of the intestate. On cross-examination, the witness stated that "deceased drank whisky at times. He was not a drinking man during crop time, but after the crops were laid by, and he had realized therefrom, he would sometimes get on a spree, especially about the Christmas holidays, but did not get drunk every time he came to town. When I got to his body on the day of the accident,--to-wit, December 24 1887,--one Pate had a small bottle of whisky, and it looked as if about a drink had been taken out, and there was a broken glass on the ground which had the smell of whisky about it. Deceased lived about a mile from the railroad. There is a county road running parallel from Goldsborough in that direction to the deceased's house, which is a little nearer than the path." P. Taylor testified: "On December 24, 1887, I was engaged at the water-station of defendant company. Saw deceased early that morning pass the station, going to town. People pass that way. He came back between 1 and 2 P. M., and I had some talk with him--say about 25 minutes. He went towards home on the railroad, and I went in the section-house and sat down. The last time I saw him, he was lying on the road-bed, before the train came with his feet towards the ditch. I looked towards town and saw the train coming between the station and water-tank. When the engineer (Morris) came along I motioned to him three times. He was sitting in his seat looking at me when I motioned, but did not seem to understand what I meant. I was standing on the ditch bank." (Witness motioned by raising his hand towards the engineer who was looking out the window of his cab.) On cross-examination: "I think deceased was about three-quarters of a mile from me when I saw him. It had been raining some, the wind was blowing,--a cold, rainy day, but not freezing,--but a man could see very well, though it was a cloudy day. The rails were wet. When deceased left me near water station I saw him about a hundred yards from me, walking on the narrow path outside of the cross-ties. He had a pint tickler of liquor, and offered me some, but I would not drink. It was about two-thirds full, and he seemed to have been drinking, but seemed to know his business. He walked steadily when he left me. He took a drink at the water station, and another when he left me in about 15 minutes. The train that killed him did not stop at the water-tank. I think the train was running about twenty miles an hour. Have seen trains run much faster. Never saw any one motion at the engineer. I knew the engineer. Had been at the water-tank about twelve months, and, as the train passed that day, the engineer blew the whistle when it got near to deceased. I could not see the deceased when the whistle blew. When I last saw him he was lying across the road-bed,--not between the rails, but between the ends of the cross-ties and the ditch. I did not see his head on the rail. If I had, I would have signaled down the engineer and stopped the train. I would have done this by placing my hat on the track. I did not do that, because I did not know his head was on the track." Upon the conclusion of the plaintiff's evidence, his honor intimated that he would instruct the jury to find the first issue in the negative, and, in deference thereto, the plaintiff submitted to a nonsuit, and appealed.

When a train running at the rate of about 20 miles an hour runs over a man, who could have been seen by the engineer at a distance of three-fourths of a mile, lying apparently helpless on the track, the question of the company's negligence is for the jury.

Aycock & Daniels, for plaintiff.

W. R. Allen and Isaac F. Dortch, for defendant.

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

When this court, in the case of Gunter v. Wicker, 85 N.C 312, adopted the rule laid down in Davies v. Mann, 10 Mees. & W. 545, that "notwithstanding the previous negligence of the plaintiff, if at the time when the injury was committed it might have been avoided by the exercise of reasonable care and prudence on the part of the defendant, an action will lie for damages," it was thenceforth aligned with one of two classes, holding widely divergent views as to the effect of contributory negligence on the part of a plaintiff, under certain circumstances, upon his right of recovery. That ruling has been expressly approved in a large number of later cases, and is now firmly grounded as a part of our system, in so far as it is distinct from that of any other courts where the common law of England prevails. Farmer v. Railroad Co., 88 N.C. 564; Turrentine v. Railroad Co., 92 N.C. 638; Aycock v. Railroad Co., 89 N.C. 321; Troy v. Railroad Co., 99 N.C. 298, 6 S.E. Rep. 77; McAdoo v. Railroad Co., 105 N.C. 140, 11 S.E. Rep. 316 ; Daily v. Railroad Co., 106 N.C. 301, 11 S.E. Rep. 320; Lay v. Railroad Co., 106 N.C. 404, 11 S.E. Rep. 412; Bullock v. Railroad Co., 105 N.C. 180, 10 S.E. Rep. 988; Carlton v. Railroad Co., 104 N.C. 365, 10 S.E. Rep. 516; Wilson v. Railroad Co., 90 N.C. 69. See, also, Weymire v. Wolfe, 52 Iowa, 533, 3 N.W. 541; Railroad Co. v. Kellam, 92 Ill. 245; Meeks v. Railroad Co., 56 Cal. 513; Kenyon v. Railroad, 5 Hun, 479. In those states where the very opposite view was taken, it was held that where one went upon the track of a railroad company at a point other than a crossing, where the public have a right of way, without special license, he was a trespasser and could not recover for any injury inflicted upon him through the negligence of such company's agents or employes, unless it was wanton. Mulherrin v. Railroad Co., 81 Pa. St. 366; Rounds v. Railroad Co., 64 N.Y. 129; Pennsylvania Co. v. Sinclair, 62 Ind. 301; Donaldson v. Railroad, 21 Minn. 293; Beach, Contrib. Neg. § 67 et seq.; Express Co. v. Nichols, 33 N. J. Law, 434. In delivering the opinion in Manly v. Railroad Co., 74 N.C. 655, Justice BYNUM, foreshadowed by an intimation the subsequent adoption by this court, in Gunter v. Wicker, supra, of the principle stated in Davies v. Mann, and after it had been approved in so many well-considered opinions, it became apparent that it would be illogical and inconsistent to adhere to the rule laid down in Herring v. Railroad Co., 10 Ired. 402, or the interpretation generally given to Judge PEARSON'S language by the leading text-writers of this country. In that case, the engineer might have seen two little negroes who were lying on the track asleep, according to conflicting testimony, from 200 yards to a half-mile, before his engine reached them. He did not actually discover that the children, were asleep till he was within 25 or 30 yards of them. The testimony showed also that the train could have been stopped by the engineer within from 75 to 100 yards. The judge below charged the jury that the railroad company was not liable for the neglect...