Griffin v. Seabd. Air Line Ry.Co

• Decision Date: 11 April 1905
• Citation: 50 S.E. 516,138 N.C. 55
• Court: North Carolina Supreme Court
• Parties: GRIFFIN. v. SEABOARD AIR LINE RY.CO.

138 N.C. 55

50 S.E. 516

GRIFFIN.

v.SEABOARD AIR LINE RY.CO.

Supreme Court of North Carolina.

April 11, 1905.

RAILROADS—INJURIES TO TRESPASSERS—INSTRUCTIONS.

1. Defendant cannot complain of a charge

which was substantially responsive to a prayer offered by defendant on the same phase of the case.

[Ed. Note.—For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3602.]

2. A charge that if the jury should find that plaintiff's intestate, although killed by a moving train of defendant, saw the approaching train, and "was conscious of the danger, " and had the time and ability to remove himself from his position of peril, and failed to do so, plaintiff could not recover, is not erroneous.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, § 1294.]

Appeal from Superior Court, Anson County.

Action by Anna M. Griffin, administratrix, against the Seaboard Air Line Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed without opinion at the fall term, 1904. On petition for rehearing. Dismissed.

The following statement is taken from the petition for rehearing, and presents the facts necessary to an understanding of the opinion:

"This action was brought for the recovery of damages for the killing of the plaintiff's intestate, who was run over by defendant's trainwhile lying on the roadbed of tbe defendant company. The chief question before the jury was whether the engineer exercised due or ordinary care in keeping a proper lookout upon the track; and whether, if he had kept a proper lookout, he could have discovered the Intestate in an apparently helpless condition In time to have stopped the train and avoided the injury. W. A. Horton, the engineer, introduced by defendant, after testifying as to the proper equipment of the train and other particulars of the accident, testified as follows: 'Q. As you approached the station of Peachland, were you keeping a lookout? A. Yes, sir; I was looking right in the track. Q. What kind of lookout were you keeping? A. A careful one, watching the track all the time. Q. As you passed from Peachland keeping a lookout, did you discover anything? If so, when and where? A. Well, after I passed that mail crane there, about midway between that and the crossing, I saw the deceased's face. Q. You saw bis head? A. Yes, sir. I saw his face up near the rail. I think I was about one hundred yards from him, as best I could tell, from the telegraph poles. It was about half way between the mail crane and the top of the hill. Q. As you approached the station of Peachland, how Is the grade? A. As you come up to the station it is upgrade to a point nearly opposite the warehouse. Q. After you leave the station, how is it? A. Then it begins to go down. Q. Which is the steepest? A. The grade on the east side of the depot is greater than on the west side; that is, it is steeper, but it goes down from the station as you go in. Q. Did you discover any portion of his body? A. No, sir; I did not see anything of his body until I got right over him. Q. Was his head on the rail or adjoining the rail? A. The back part of his head was up against the rail. His head was not on the rail at all. Q. Was it on the cross-ties? A. I am not positive about that. I really believe when we got back there that his head was leaning on the cross-ties. Q. You are not certain how it was before? A. No, sir. Q. When you discovered that face of a man, what did you do? A. I applied the brakes so as to stop. Q. What kind of brakes? A. Air brakes. I throwed them in the emergency application, and stopped the train as quick as possible. Q. Could you have stopped any sooner by any means that you have that you did not use then? A. No, sir. Q. How do you apply emergency brakes? A. Well, the brake valve is right in front of you. Q. What means did you have to use in making the stop? A. The brake valve right in front of me, and the sand blower. They are right together there. Q. Did you use both of them? A. I am not positive about the sand. Q. Give me your best impression. A. I cannot say positively I used the sand. My impression is that I did do it. Q. How far did your train run before it was stopped? A. From the time I put on the brakes to where it stopped was something like 1, 200 feet. Q. How far beyond the place where the man was did you go? A. It looked like about a train length from the rear end of the train to where we went back to him. It was in the night. Since then I know where I stopped at, and I know it was about that distance. Q. State whether or not this face could have been discovered by a person on an engine at a greater distance than it was discovered by you that night? A. No, sir; I do not think it could. Q. Could a train have stopped at that place, traveling 45 miles an hour, in a shorter distance than it was stopped by you that night? A. No, sir; I do not think it could. Q. How long have you been an engineer over, this particular road? A. Ten or twelve years. Q. Have you looked to see, at this particular point, where this person was since this accident? A. Oh, yes, sir; I look at it every other day. I come by there every other morning. Q. Have you had occasion to look at it with a good headlight, to see in what distance he could be seen? A. Yes, sir; I have been up there several times. Q. What do you say now as to what distance he could have been seen? A. One hundred yards is about the furthest distance anybody would be able to see him. Q. I mean you. A. That Is as near as I have ever been able to see him." On cross-examination this witness, W. A. Horton, questioned by plaintiff, answered as follows: "Q. Did not you tell Mr. Bailes that night that your plow struck him? (Def...