Ferrell v. Durham Traction Co
Decision Date | 19 December 1916 |
Docket Number | (No. 326.) |
Citation | 90 S.E. 893 |
Court | North Carolina Supreme Court |
Parties | FERRELL. v. DURHAM TRACTION CO. et al. |
Appeal from Superior Court, Durham County; Devin, Judge.
Action by Young Ferrell, and Young Ferrell, administrator of Freeman Ferrell, against the Durham Traction Company and another. From a judgment for plaintiff against defendant Traction Company, such defendant appeals. Affirmed.
On motion made in apt time, there was judgment of nonsuit as to the Railroad Company, and, the cause being submitted to the jury as to liability of the traction company, the following verdict was rendered:
Judgment on the verdict for plaintiff, and defendant the traction company appealed, assigning for error chiefly the refusal to nonsuit as to appellant because of the alleged fact that intestate, at the time he was killed, was a trespasser on the train of its codefendant and was also there in violation of the criminal laws of the state.
W. L. Foushee and W. J. Brogden, both of Durham, for appellant.
Manning, Everett & Kitchin and S. C. Brawley, all of Durham, for appellee.
The action was originally instituted against the Durham Traction Company and the Sea Board Air Line Railroad Company, and there is evidence on the part of plaintiff tending to show that on April 7, 1915, about 7 p. m., the intestate, at the invitation of an acquaintance, a brakeman on a freight train of defendant railroad, was on top of a car of said train, as it moved out of East Durham, going north; that the brakeman was giving the intestate and his brother this ride with the view and under promise of having them help in unloading freight at a nearby station on the route. There was testimony also to the effect that the train hands were accustomed to get help in this way, and that at previous times it had been done with the conductor's knowledge; that, not far from East Durham, while intestate was on the car and going back towards the caboose, a power wire of the traction company, which had been stretched across the railroad and negligently allowed to sag and so low as to threaten the safety of all persons on the car or trains of that character, struck the intestate as he was stepping from one car to the other, knocked him down between the cars, and he was run over and killed. On these, the facts chiefly relevant, the court rendered judgment of nonsuit as to the railroad company, and, on issues submitted, there was verdict establishing that the intestate was killed by the wrongful negligence of the traction company, "as alleged in the complaint"; that there was no contributory negligence on the part of the intestate, and assessing the damages at $575. Judgment having been entered on the verdict, the traction company excepted and appealed, assigning for error chiefly the refusal to order a nonsuit as to appellant also.
It is undoubtedly the general rule that a trespasser cannot maintain an action against the owner for negligent injuries received by reason of conditions existent upon the premises, but this is a principle growing out of and dependent upon the right of ownership and considered essential to their proper enjoyment. All of the decisions in this jurisdiction, cited in support of defendant's exceptions, are cases of that character. Bris-coe v. Lighting & Power Co., 148 N. C. 396, 62 S. E. 600, 19 L. R. A. (N. S.) 1116, and others. Even as to suits of that kind, the position has been very much qualified as in case of technical trespass, etc. 29 Cyc. p. 443. But the principle referred to and relied upon has no necessary or proper application to the facts of this record, where the injury was caused by the wrong of a third person having no connection with the owner or his proprietary rights. In such case, the general rule is the other way, and recovery is not ordinarily denied merely because of the fact that the injured party is himself a trespasser. Such fact may or may not be a relevant circumstance on the question of proximate cause, but is not allowed to defeat the action as a matter of law.
The distinction is very well presented in a case from 72 N. J. Law, 276, 62 Atl. 412, 3 L. R. A. (N. S.) 988, 111 Am. St. Rep. 668 (Guinn v. Delaware & A. Telephone Co.); the relevant facts and the decision of the court therein being as follows:
In Watson on Damages for personal injuries, speaking to the question, the author says:
And the general principle is approved in many well-considered decisions of other courts. Phil., etc., Ry. v. Towboat Co., 64 U. S. (23 How.) 209-218, 16 L. Ed. 433; Sutton v. Wanwatosa, 29 Wis. 21, 9 Am. Rep. 534; Delaware, etc., Ry. v. Trautwein, 52 N. J. Law, 169, 19 Atl. 178, 7 L. R. A. 435, 19 Am. St. Rep. 442; Cameron v. Vandergriff, 53 Ark. 381, 13 S. W. 1092; Electric Co. v. Melville, 210 Ill. 70, 70 N. E. 1052. And Curtis on Electricity, § 462, is to the same effect. There are many other authoritative cases in support of the principle as stated: That an injured party is not barred of recovery for a wrong done him because of the mere fact that he was, at the...
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McPheters v. Loomis
... ... 573; Williams v. Springfield Gas & ... Electric Co., 274 Mo. 1, 11, 202 S.W. 1; Ferrell v ... Durham Traction Co., 172 N.C. 682, 90 S.E. 893, ... L.R.A.1917B, 1291. In other cases the ... ...
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McPheters v. Loomis
... ... 573; Williams v. Springfield Gas & Electric Co., 274 Mo. 1, 11, 202 S.W. 1; Ferrell v. Durham Traction Co., 172 N.C. 682, 90 S.E. 893, L.R.A.1917B, 1291. In other cases the liability ... ...
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Humphrey v. Twin State Gas & Electric Co.
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