Hammett v. Southern Ry. Co

• Decision Date: 13 December 1911
• Citation: Hammett v. Southern Ry. Co, 72 S.E. 1077, 157 N.C. 322 (N.C. 1911)
• Court: North Carolina Supreme Court
• Parties: HAMMETT v. SOUTHERN RY. CO.

72 S.E. 1077

157 N.C. 322

HAMMETT

v.SOUTHERN RY. CO.

Supreme Court of North Carolina.

Dec. 13, 1911.

1.Railroads (§ 400^*)—Injuries to Person on Track — Contributory Negligence — Question for Jury.

A person walking on a path by the side of a railroad track commonly used by the public for many years with the knowledge of the railroad company was struck by the tender of a switch engine going backwards.There was no light on the tender.It was very dark.He was walking about two feet from the end of the cross-ties.Held, that he was not as a matter of law guilty of contributory negligence.

[Ed. Note.— For other cases, seeRailroads, Cent. Dig. § 1377;Dec. Dig. § 400.*]

2.Railroads (§ 362*)—Injuries to Person on Track—Negligence.

It is negligence for a railroad company to back an engine on a dark night without a light on the tender, where a path along the track has been used by the public for many years to the company's knowledge.

[Ed. Note.— For other cases, seeRailroads, Cent. Dig. § 1249;Dec. Dig. § 362.*]

Appeal from Superior Court, Buncombe County; Lane, Judge.

Action by Gus Hammett against the Southern Railway Company.From a judgment of nonsuit, plaintiff appeals.Reversed, and new trial granted.

Civil action for damages for personal Injury.At conclusion of the plaintiff's evidence, his honor sustained motion to nonsuit, and plaintiff appealed.

Craig, Martin & Thomason, for appellant.

Moore & Rollins and Julius C. Martin, for appellee.

BROWN, J.The following resume of plaintiff's evidence is taken from the brief of the counsel for defendant: "The plaintiff testified that he was working at a tannery, some distance south of the public bridge across the French Broad river which leads from Ashevlle to West Ashevllle, where plaintiff lived; that the tannery was in Asheville, and on the morning of the injury he came from West Asheville to Asheville, crossed the public bridge, and walked along a street to the railroad, and then started and walked south along the railroad, between the tracks, until he was struck bythe engine.He testified that there was a path along on the right-hand side of the railroad track, in which he was walking, about two feet from the end of the cross ties, and that many people walked that way; that there were several tracks there, and he was going along the way he usually went, when a switch engine struck him and dragged him from 15 to 20 feet; that the engine was going backwards, and that it was the tender that struck him; that the end that struck him had no light on it; that the train was not running fast; that it knocked him down, and the engine ran two or three feet after they shut the steam off; that the accident happened 20 minutes past 6 in the morning."The evidence further tends to prove that it was very dark and...