Edge v. Atlantic Coast Line R. Co.

• Decision Date: 12 October 1910
• Citation: 69 S.E. 74,153 N.C. 212
• Parties: EDGE v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

69 S.E. 74

153 N.C. 212

EDGE v. ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina

October 12, 1910

Appeal from Superior Court, Edgecombe County; Guion, Judge.

Action by Charles Edge against the Atlantic Coast Line Railway Company. From a judgment of nonsuit, plaintiff appeals. Reversed.

In an action for injuries to a yard employee while attempting to cross under freight cars by an engine standing near moving the cars, whether the company was negligent held for the jury.

In an action for injuries to a yard employee while attempting to cross under freight cars by an engine standing near moving the cars, whether defendant's engineer knew of plaintiff's dangerous position, or by exercising ordinary care ought to have known thereof in time to have avoided injuring plaintiff, held for the jury.

T. T Thorne and G. M. T. Fountain & Son, for appellant.

F. S Spruill and J. L. Bridgers, for appellee.

HOKE J.

There was allegation with testimony on part of plaintiff tending to show: That on or about September 28, 1908, plaintiff was in employ of defendant company on its yards at South Rocky Mount, N. C., as "handy man or messenger," and in the line of his duty was sent by his foreman or boss, with urgent directions to hurry, to the storeroom or roundhouse of defendant with a requisition for a keg of nuts or bolts. The path to the roundhouse led over the tracks of defendant company, and on one of these tracks and across the path was a line of box cars, 18 in number, coupled together, 5 of them being towards a switching engine detached and some 10 feet ahead. That as plaintiff approached this engine was standing still with a little smoke showing, with a man in the cab, looking towards plaintiff. That plaintiff, as he came to the train of cars attempted to pass under the drawheads of the cars across the path, and, while he was in this position "of peril," the switching engine without signal or warning of any kind backed against the cars, shoving them along about half a car length, and causing serious injury to plaintiff. So far as appears, there was nothing to obstruct the view, and, speaking more directly to the question presented, the plaintiff testified: "There was a line of box cars, about 18, across the path leading to the roundhouse, and I looked towards the engine to see if I saw any one. The engine was not connected with the cars, but about 10 feet ahead of them, standing still. *** I was walking along whistling, *** saw a man sitting in the window of the engine. He had his head right towards me, and afterwards I got between the cars going on towards the other side when the engine struck the cars and knocked me," etc. And again: "Don't know the engineer. He was looking towards me with his cap pulled down in front of his face. I did not hear any signal at all. *** When the cars struck, I was crawling under the drawheads between the cars." On this testimony or on facts of similar import, we have held in the case of Beck v. Railroad, 149 N.C. 168, 62 S.E. 883: "That it was a negligent act on the part of plaintiff in endeavoring to pass between their cars standing as they were on a live track and with an engine sufficiently near as to make its approach probable, and such conduct would bar a recovery, unless, after the peril was developed, there was a negligent failure on the part of defendant company to avail itself of the last clear chance to avoid the injury." In such case the prior negligence of plaintiff would not be contributory because it would not be the proximate or concurrent cause of the injury. Speaking to this question in Sawyer's Case, 145 N.C. 29, 58 S.E. 600, 22 L. R. A. [N. S.] 200, the court said: "A negligent act of the plaintiff does not become contributory unless the proximate cause of the injury; and, although the plaintiff in going on the track may have been negligent, when he was struck down and rendered unconscious by a bolt of lightning, his conduct as to what transpired after that time was no longer a factor in the occurrence, and, as all the negligence imputed to defendant on the first issue arose after plaintiff was down and helpless, the responsibility of defendant attached because it negligently failed to avail itself of the last clear chance to avoid the injury; so its negligence became the sole proximate cause of the injury, and the act of the plaintiff in going on the track, even though negligent in the first instance, became only the remote, and not the proximate or concurrent, cause." And on this doctrine of the last clear chance in the recent case of Snipes v. Manufacturing Co., 152 N.C. 42, 46, 67 S.E. 27, 29, this court said: "Ordinarily, cases calling for application of the doctrine indicated arise when the injured person was down on the track, apparently unconscious or helpless, as in Sawyer's Case, just referred to, or in Pickett's Case, 117 N.C. 616 [23 S.E. 264, 30 L. R. A. 257, 53 Am. St. Rep. 611], or in Deans' Case, 107 N.C. 687 [12 S.E. 77, 22 Am. St. Rep. 902]; but such extreme conditions are not at all essential, and the ruling should prevail whenever an engineer operating a railroad train does, or in proper performance of his duty should, observe that a collision is not improbable, and that a person is in such a position of peril that ordinary effort on his part will not likely avail to save him from injury; and the authorities are also to the effect that an engineer in such circumstances should resolve doubts in favor of the safer course."

This doctrine, here termed and referred to as the "last clear chance," meaning responsibility arising by reason of a negligent failure of a defendant to avail himself of the last clear chance of avoiding the injury, is very firmly implanted in our law and the duty and the breach of it, upon which it is properly made to rest, has been illustrated and applied in many recent decisions of the court, as in: Farris' Case 151 N.C. 483-491, 66 S.E. 457; Lassiter's Case, 133 N.C. 244-247, 45 S.E. 570; Arrowood's Case, 126 N.C. 629-632, 36 S.E. 151; Powell's Case, 125 N.C. 374, 34 S.E. 630; Purnell's Case, 122 N.C. 832, 29 S.E. 953; Stanley's Case, 120 N.C. 514, 27 S.E. 27; Lloyd's Case, 118 N.C. 1010, 24 S.E. 805, 54 Am. St. Rep. 764; Deans' Case, 107 N.C. 687, 12 S.E. 77, 22 Am. St. Rep. 902; Bullock's Case, 105 N.C. 180-189, 10 S.E. 988. Thus in the well-considered case of Farris, Administrator, v. Railroad, where a railroad company had negligently killed an employé who was walking along the track about the place of a yard crossing, and who had grabbed for his hat, which had suddenly blown from his head on or towards the track and causing the employé to grab for the hat, and thus expose himself to danger, Associate Justice Manning delivering the opinion, and in reference to the question we are discussing said: "The defendants objected to his honor's submitting the third issue; that issue presenting the 'last clear chance.' While this issue has become immaterial, in view of the finding of the jury on the first and second issues, we think it was proper for his honor to have submitted it. If the jury had found with defendants on the second issue having found the first issue with plaintiff, the ultimate liability of defendants would have been determined by their finding on the third issue. In the presence of the concurring negligence of a plaintiff and a defendant, it is a generally accepted doctrine, and well settled in this state, that the ultimate liability must depend upon whether the defendant could at the time have avoided the injury by the exercise of reasonable care under the attendant circumstances. Ray v. Railroad, 141 N.C. 84 [53 S.E. 622]; Reid v. Railroad, 140 N.C. 146 [52 S.E. 307]; Lassiter v. Railroad, 133 N.C. 244 [45 S.E. 570]; Arrowood v. Railroad, 126 N.C. 629 [36 S.E. 151]; Pickett v. Railroad, 117 N.C. 616 [23 S.E. 264, 30 L. R. A. 257, 53 Am. St. Rep. 611]." In Lassiter's Case, supra, a railroad conductor of a freight train, in the performance of his duty on a railroad yard, had negligently stepped up on a side track where some shifting was going on, and was run over by a shifting engine pushing some cars backwards on the side track referred to, and it appeared that the engineer on the cab could not have seen the conductor, and there was no one in position to keep a lookout, and there was no evidence that the bell was not ringing or the whistle not sounding, and it was held to be an issue on the last clear chance, and associate Justice Montgomery in the opinion said: "It is the duty of railroad companies to keep a reasonable lookout on moving trains. When Thomason saw the intestate step up on the side track, the end of the box car attached to the shifting engine was 20 steps from him, and the cars were moving at the rate of 4 miles an hour. The same witness said that the intestate had time to have gotten off if he had heard the witness when he hallooed to him. That evidence was competent and fit to have been submitted to the jury upon the question of the last clear chance of the defendant; that is, whether, if both the plaintiff and the defendant had been negligent, the defendant could have prevented the death of the intestate by the use of means at hand, or that reasonably ought to have been at hand. In Pickett v. Railroad, 117 N.C. 616 [23 S.E. 264], 53 Am. St. Rep. 611, 30 L. R. A. 257, the court said: 'If it is a settled law of North Carolina (as we have shown) that it is the duty of an engineer on a moving train to maintain a reasonable vigilant outlook along the track in his front, then the failure to do so is the omission of a legal duty. If, by the performance of that duty, an accident might have been averted, notwithstanding the previous negligence of another, then, under the doctrine of Davies v. Mann and...