Edwards v. Carolina & N. W. R. Co

• Decision Date: 22 November 1905
• Court: North Carolina Supreme Court
• Parties: EDWARDS . v. CAROLINA & N. W. R. CO.

52 S.E. 234

140 N.C. 49

EDWARDS .

v.CAROLINA & N. W. R. CO.

Supreme Court of North Carolina.

Nov. 22, 1905.

1. Railroads—Crossing Accident—Actions —Instructions.

In an action for death at a railroad crossing while deceased was trying to cross between two sections of a train, an instruction that it was defendant's duty "to ring the bell or blow the whistle, " or to give other suitable and sufficient signals and warnings of the approach of its train while moving the same in its yards, and to use all proper and reasonable efforts to avoid injuring any party who might be in its yards on legitimate business, etc., was not objectionable, as contradictory, in that the first part was in the alternative, while the second part required both the giving of signals and the taking of precautions.

2. Same—Use of Crossings.

In an action for death at a railroad crossing, an instruction that use of the highways belongs as much to the public as the track does to the railroad company, and that for the company to block the highway without absolute necessity, or to render its use so dangerous as to deter the traveling public or to keep them in fear of life or limb, would be a material or unlawful interference with their rights, and would constitute evidence of negligence, was correct.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, § 964.]

3. Same—Contributory Negligence.

A request to charge that defendant railroad company was not guilty of any negligence, causing the death of plaintiff's intestate, if intestate was guilty of conduct recited which amounted to contributory negligence, was properly refused.

4. Trial — Refusal of Request — Curing Error.

A finding that intestate was guilty of contributory negligence cured error in the refusal of a prayer on such issue.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 4230.]

Appeal from Superior Court, Lincoln County; Cooke, Judge.

Action by R. S. Edwards, as administrator, etc., against the Carolina & Northwestern Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. H. Marion and C. E. Childs, for appellant.

D. W. Robinson, for appellee.

CLARK, C. J. At Lincolnton Station the defendant's tracks are on the north side of the depot, and those of the Seaboard Air Line Railway are parallel and on the southside. On the day in question a long freight train had come in on the defendant's track, and had been engaged in unloading and shifting some half hour, when the passenger train came in on the other road. Thereupon the defendant's freight train was "cut open" where the street leading to the town crossed its track. This street was then used, and had been for many years, as the main and only thoroughfare to and from the trains and depot. After being left open a short while, half the width of the street or less, and before the Seaboard passenger train had left, this interval in the defendant's freight train was closed to three or four feet in width. The plaintiff's intestate, who was the mail carrier between the station and the post office (which was on the north side), came from the Seaboard train pushing a wheelbarrow loaded with mail. He threw the mail across the opening, it being too narrow for his wheelbarrow, and then was trying to cross through himself, when the train came back and killed...