Durham v. Wilmington & Weldon R.R. Co.

• Decision Date: 31 January 1880
• Citation: 82 N.C. 352
• Court: North Carolina Supreme Court
• Parties: D. T. DURHAM v. WILMINGTON & WELDON RAILROAD COMPANY.

82 N.C. 352

D. T. DURHAM

v.WILMINGTON & WELDON RAILROAD COMPANY.

Supreme Court of North Carolina.

January Term, 1880.

CIVIL ACTION tried at Fall Term, 1879, of PENDER Superior Court, before Eure, J.

The plaintiff brought this action to recover damages of the defendant company for alleged negligence in killing a mule, the property of plaintiff. The facts of the case are substantially set out in the opinion of this court. His Honor intimated that the defendant had rebutted the presumption of negligence, if the facts should be found as stated by the witnesses, and in deference thereto the plaintiff took a nonsuit and appealed.

Mr. A. T. London, for plaintiff :

The act of 1857 (Bat. Rev., ch. 16, § 11,) which makes the fact of killing prima facie evidence of negligence on the part of defendant, was intended as a protection to owners of cattle, and is in pursuance of the general policy of the state in regard to stock, which are allowed to run at large and are protected by various statutes and decisions. Rev. Code, ch. 38; Bat. Rev., ch. 16; Burgwyn v. Whitfield, 81 N. C., 261; 7 Jones, 468 and 555. Defendant company cannot acquit itself except by showing there was no neglect whatever. Clark v. R. R. Co., Winst., 109; Pippen's case, 75 N. C., 54. The counsel commented upon Doggett's case, 81 N. C., 459, and Proctor's, 72 N. C., 579.Messrs. D. J. Devane, Junius Davis and Stedman & Lattimer, for defendant :

Notwithstanding the act of 1857, the plaintiff can no more recover in such case, when he has been guilty of contributory negligence, than he could before the passage of the act. Forbes' case, 76 N. C., at page 457. It was the duty of the court to say, if the witnesses were to be believed, whether or not the defendant was guilty of negligence. Doggett's case, 81 N. C., at page 462; Manly's, 74 N. C., 658; Proctor's, 72 N. C., 579; Scott's, 4 Jones, 432.

SMITH, C. J.

The passenger train of the defendant company left Wilmington at the usual hour and was proceeding north on the night of February 13, 1879, at the usual speed of twenty-eight miles an hour and on schedule time, when the fireman, on the lookout, a little after 9 o'clock, observed some object on the track a few yards ahead and at once gave notice to the engineer in charge. The steam throttle was immediately closed and the brakes applied, but before the alarm signal could be blown, or the progress of the moving train perceptibly diminished, it struck and killed the plaintiff's mule. It had been raining and the night was dark and foggy. By the head-light of the engine no obstruction on the track could be seen at a greater distance than twenty yards in advance. A train running at the rate of twenty-five or thirty miles an hour could not be brought to a standstill short of about three hundred yards, and would require less than two seconds to pass over twenty yards.

No omitted duty on the part of the agents of the company in charge of the train is suggested, nor negligence in the employment of any available means by which the injury could have been avoided. The train was moving in its usual manner, the fireman with vigilance stimulated by the darkness of the night and consequent danger, is on the look out and discerns the obstruction the moment it becomes visible. The engineer is at his post and responds promptly to the first notice of its presence by shutting off steam and causing the brakes to be applied, and in a moment, before the whistle can be blown, the mule is stricken and killed. In the language of SETTLE, J., in a case not dissimilar, “what more could...