Fulp v. Roanoke & S. R. Co

• Decision Date: 13 April 1897
• Citation: 27 S.E. 74,120 N.C. 525
• Court: North Carolina Supreme Court
• Parties: FULP v. ROANOKE & S. R. CO.

27 S.E. 74

120 N.C. 525

FULP

v.ROANOKE & S. R. CO.

Supreme Court of North Carolina.

April 13, 1897.

Railroads—Crossings—Negligence — Contributory Negligence.

1. On an issue whether defendant was negligent in respect to the killing of a person on the track, the court, after instructing that the burden of establishing that issue was on plaintiff, charged that if defendant gave a warning whistle at the crossing, or if the intestate was drunk, or unconscious, so that no signal would have aroused him, there was no negligent killing. Held error, since it connected the intestate's negligence with that of defendant, so that the jury could answer the issue without passing on defendant's negligence, and put the burden on plaintiff to prove that the intestate was not negligent.

2. It is error to instruct, on an issue as to the contributory negligence of a person killed on the track, that, if the intestate failed to note the approach of the train because he was drunk, and was killed in consequence, he was guilty of contributory negligence, without instructing that defendant was liable, notwithstanding intestate's negligence, if it could have discovered his peril, and averted the accident by ordinary care, though the engineer testified that he was at his post, and could not see the intestate, who was on the left side of the track.

Appeal from superior court, Forsyth county; Hoke, Judge.

Action by Susan M. Fulp, administratrix, against the Roanoke & Southern Railroad Company. Judgment on a verdict for defendant, and plaintiff appeals. Reversed.

Plaintiff's evidence was to the effect that the intestate's dead body was found on the track near a crossing, that blood was found on a wheel of the locomotive which passed over the crossing that night, and that the engineer did not whistle for the crossing.

J. S. Grogan, for appellant.

Watson & Buxton, for appellee.

FURCHES, J. This is an action for damages, in which the plaintiff administratrix alleges that defendant negligently ran over and killed her intestate, Westley Fulp. The killing was admitted to have been done by a freight train on defendant's road, in the nighttime, near a public crossing about one mile north of Denney. The train that killed the intestate was going south, and struck the intestate "30 or 40" yards north of the crossing. There was a curve in the road just before reaching the crossing. Lacy, the engineer, was introduced by the defendant, and testified: "I was engineer. I had 12 or 15 freight cars that night. It was a few minutes after schedule time. I didn't know anything of having injured any one until next morning. I was in my proper place. Could not have seen persons going along the track further than 50 yards, because the headlight would help me no further than that. The signs the next morning showed that the man was on the left side of the track. There were no signs on the cowcatcher to show that it had struck him, but back of the cowcatcher, and attached to the frame of the tracks, on bolts that project downward, lower than the cowcatcher. The cowcatcher would pass over a man lying down inside of the rails, but these bolts would not. These bolts on the left side had blood on them, and fibers of clothing, showing they had struck the deceased, and that he was lying down. I could not have seen a man lying on the left side of the track that night, from my position on the engine. I sounded the whistle and rang the bell beforereaching that crossing. * * * It is a part of my duty." Another witness testified that the engineer could not have stopped the train, after turning the curve, "before running GO or 70 yards past the crossing." But Lacy, the engineer, and witness of defendant, does not say a word as to whether he could have stopped the train or not. A witness (Charles Marshall) testified that he lived on the road between Walnut Cove and where the intestate was killed; that the intestate was at his house that night, just after dark; was drinking; threw up at his house; wanted witness to go with him, to show him the way to his mother's, but witness refused to do so; deceased left, and went towards the road; he told him not to do so; heard the whistle of the engine at Walnut Cove; deceased went on; this was about 15 minutes before the train passed; deceased had walked a quarter of a mile after this, before he was killed by the defendant's train. It was the duty of the engineer to sound the whistle for this crossing, and there was evidence tending to show that he did not sound the whistle, while there was evidence tending to prove that he did sound the whistle, and the court properly submitted this question to the jury under the first issue.

The court submitted the following issues to the jury, and they were answered as indicated: (1) "Was the plaintiff's intestate negligently killed by the defendant company? Ans. No." (2) "Was the intestate guilty of contributory negligence? Ans. Yes." (3) "What damage is the plaintiff entitled to recover?" The court charged the jury that the burden of proof to establish the first issue was upon the plaintiff, and the burden to establish the second...