Dunn v. Wilmington & W.R. Co.
| Decision Date | 28 March 1899 |
| Citation | 32 S.E. 711,124 N.C. 252 |
| Parties | DUNN v. WILMINGTON & W. R. CO. |
| Court | North Carolina Supreme Court |
Plaintiff was injured by the running away of his horses, which were frightened at 1 p.m. by the escaping of steam from an automatic safety valve of an engine that remained standing on a side track, immediately adjoining a much-frequented public street, every day from 8 a.m. to 4:30 p.m. The engine without practical inconvenience, could have been kept on another track, where it would have been out of the way. It was not proved that it was necessary to keep up sufficient steam in the engine to open the safety valve. Held a question for the jury whether the railroad company was negligent.
Appeal from superior court, Duplin county; Robinson, Judge.
Action by Joseph Dunn against the Wilmington & Weldon Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed.
Allen & Dortch and Simmons, Pou & Ward, for appellant.
Junius Davis and H. L. Stevens, for appellee.
This is an action to recover damages on account of personal injuries received by the plaintiff through the alleged negligence of the defendant, in causing or permitting steam to escape from one of its engines while standing in or near a public street whereby the horses driven by the plaintiff became frightened ran away, and severely injured the plaintiff. The usual issues were submitted, the first being as follows: "Was the plaintiff injured by the negligence of the defendant?" The court directed the jury to answer this issue in the negative, which ended the case.
The following facts appear by evidence or admission: The defendant's side track, on which the engine was standing, ran along and immediately adjoining a public street leading to the warehouse of the defendant, and much frequented. On the day of the injury, about 1 o'clock, the plaintiff, driving a team with a loaded wagon, drove past the engine to the warehouse, where he unloaded the goods. He then came back the same street, and while directly opposite the engine the horses were frightened by steam escaping therefrom, which came into the street near, and directly towards them. The horses ran, and threw the plaintiff out of the wagon, thus causing the injuries of which he complains. The engine came regularly into the town of Warsaw every morning about 8 a. m., and remained until its return trip, about 4:30 p. m. During the eight hours intervening it was, prior to the accident, kept on the side track where it was when the plaintiff was injured. It was not necessarily there, but could have been kept without practical inconvenience on another side track below the warehouse, where there is little passing, or it could have been placed on the Clinton track, where it would have been out of the way. Since the injury to the plaintiff, it does not stand where it did, but stands below the warehouse. What caused the escape of the steam is not clearly shown. One of the defendant's witnesses testified that "an engine standing generates steam, and pops off'; while another of its witnesses stated that "the noise described by the plaintiff could not have been made except when the donkey pump was working or when the injector is put on," thus requiring human agency. It was admitted that the engine was in good condition, and was standing on the side track, and that Mack Jones, who was then on the engine, was a fireman in the employ of the defendant. There was other evidence, some of which tended to prove the contributory negligence of the plaintiff, but this cannot be considered on a motion for nonsuit or a direction of the verdict upon the issue of the defendant's negligence.
The case, as now before us, presents the single question whether there was sufficient evidence to go to the jury as to the negligence of the defendant, and, for the purpose of this inquiry, the evidence must be construed in the light most favorable for the plaintiff. These principles have been fully and recently considered and affirmed in Spruill v. Insurance Co., 120 N.C. 141, 27 S.E. 39; Cable v. Railway Co., 122 N.C. 892, 29 S.E. 377; Cox v. Railroad Co., 123 N.C. 604, 31 S.E. 848; and many other cases. We think there was sufficient evidence to go to the jury tending to prove the negligence of the defendant, arising not only from negligently causing or permitting the escape of steam, but also from keeping the engine for more than eight hours, during the busiest part of the day, in a position where it might naturally frighten the horses of those lawfully upon the street. Andrews v. Railway Co., 77 Iowa, 669, 42 N.W. 513. Railroad companies are, at least in contemplation of law, organized primarily for the public benefit, and it is this public use that is the sole foundation for the extraordinary powers that are conferred upon them, such as the right of condemnation. Given such exclusive privileges, they are held to an equal responsibility; and they will be protected in the proper exercise of all lawful acts that may be reasonably necessary in the performance of their exacting duties to the public as common carriers. If it had been necessary for any public purpose to have kept the engine by the side of a public street, then the mere act would not, of itself, have been negligence; but to keep an engine under steam, in a place of danger to the public, when it could just as well have been placed beyond all opportunity of danger, is at least strong evidence of negligence. It is true the mere presence of the engine was not "causa causans" of the injury to the plaintiff, but it was certainly "causa sine qua non," without which the injury would not have happened.
Whether the steam escaped through the automatic safety valves, or was blown off in any way by the fireman, is immaterial to the issue, as either might be negligence. It is urged that safety valves are necessary to prevent explosion. That may be true; but was it necessary to keep up, for so long a time, a head of steam sufficient to open these valves? It is also said that it becomes necessary to put on the injector, so as to force water into the boiler when it gets too low; but was it necessary to do so at the precise moment when the plaintiff was passing? All these are questions for the jury.
The use of the highway belongs to the public by common right, and no one can obstruct it without paramount necessity. This is equally true whether the obstruction is in the highway or so immediately adjacent thereto as to obstruct its use. It is unnecessary to add that whatever renders dangerous the use of a highway is an obstruction. The public has certainly as much right to the highway as the railroad company has to its right of way, and each should respect the relative rights of the other. The rule is the same whether they intersect or are merely contiguous. The public would not be permitted to unnecessarily obstruct the track, or to do anything that would endanger a passing train; neither must the company unnecessarily obstruct the highway, nor place in useless jeopardy the life of the individual. We think that the cases of Myers v. Railroad Co., 87 N.C. 345, and Harrell v. Railroad Co., 110 N.C. 215, 14 S.E. 687, fully decide the principles now under discussion, but, as they are of increasing importance, it may not be aims to show that they are practically sustained by the uniform current of authority.
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