Edwards v. Atlantic Coast Line R. Co.

• Decision Date: 01 October 1901
• Citation: 39 S.E. 730,129 N.C. 78
• Parties: EDWARDS v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

39 S.E. 730

129 N.C. 78

EDWARDS v. ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina

October 1, 1901

Syllabus by the Court.

Appeal from superior court, Wilson county; Coble, Judge.

Action by J. W. Edwards against the Atlantic Coast Line Railroad Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.

It is error to give contradictory or conflicting instructions.

Woodard & Mewborn, for appellant.

H. G Connor, Geo. B. Elliott, and F. A. Daniels, for appellee.

DOUGLAS J.

This is an action brought by the administrator to recover damages for the death of his intestate, alleged to have been caused by the negligence of the defendant. It is admitted that the intestate was killed by the defendant's engine about 2 o'clock in the daytime at a street crossing within the corporate limits of the city of Wilson, and that there was an ordinance of said city reading as follows: "That any engineer of a railroad company who shall run any train in the city at a speed exceeding ten miles an hour, or who shall fail to ring the bell while in the city, shall be subject to a fine," etc. There was conflicting evidence as to the speed at which the train was running, and as to whether the whistle was sounded or the bell rung. We think that the testimony of a witness that he did not hear either the whistle or the bell, although in a position where he might reasonably have heard either, is sufficient evidence for the consideration of the jury. It tends to prove that neither the whistle nor the bell was sounded, but whether it does prove it is for them alone to decide. The plaintiff asked the witness this question: "If the public highway had remained as it was before the construction of the railroad, if a person driving along the highway could not have observed the approach of the train more readily than a person traveling along the same highway since the construction of the crossing made by the defendant railroad." This question, upon objection, was properly ruled out by the court. We are not clear what was meant by the question, but, in any view of it, we fail to see its relevancy. If the plaintiff had wished to show that the crossing was negligently constructed, he had the right to do so. By "negligent construction" we mean such an improper construction of the crossing, whether arising from negligence, indifference, or motives of economy, as unnecessarily increases the danger of using the public highway. Raper v. Railroad Co., 126 N.C. 563, 36 S.E. 115. But the mere fact that a crossing is dangerous does not necessarily impute negligence to the railroad company. All railroad crossings are more or less dangerous, and the mere presence of a railroad near a public highway is necessarily a disturbing element; but the company is not responsible for such inherent danger unless it unnecessarily causes or increases it by some unlawful act, or willful or negligent omission of duty. It is true that a railroad company might, by a proper construction of its road, render a public highway so dangerous as to demand more than ordinary care in the running of its trains, and it may be that to show this was the plaintiff's object; but even in that view the question was too general.

The plaintiff's second exception presents a graver question and we think must be sustained. It is well settled that where there are conflicting instructions upon a material point a new trial must be granted, as "the jury are not supposed to be capable of determining when the judge states the law correctly and when incorrectly." Tillett v. Railroad Co., 115 N.C. 662, 20 S.E. 480; State v Fuller, 114 N.C. 885, 19 S.E. 797; Williams v Haid, 118 N.C. 481, 24 S.E. 417; Bragaw v. Supreme Lodge, 124 N.C. 154, 32 S.E. 544. This rule applies where there is actual repugnance, and where, consequently, one part of the charge is necessarily erroneous, but not to cases where parts of the charge are explained and amplified by other parts thereof, or where an error therein is afterwards corrected in so clear and unmistakable a manner as to leave no possibility of misconstruction by the jury. Everett v. Spencer, 122 N.C. 1010, 30 S.E. 334. His honor charged in part as follows: "If the jury find that the train at the time it reached the crossing in question was running at a greater speed than that prescribed by the town ordinance, and find that, if the said train had not been running at the time it reached the said crossing at a greater rate of speed than that prescribed by the town ordinance, that the injury would not have occurred,--that is, find that but for such rate of speed the injury would not have happened,--then the jury are instructed that...