Haynes v. Southern Ry. Co.
| Decision Date | 21 December 1921 |
| Docket Number | 591. |
| Parties | HAYNES v. SOUTHERN RY. CO. ET AL. (TWO CASES). |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Haywood County; Long, Judge.
Two actions, one by George C. Haynes, administrator, and the other by Sallie K. Haynes, both against the Southern Railway Company and another. Judgment for plaintiffs, and defendants appeal. No error.
Civil actions to recover damages for an alleged negligent injury to plaintiff's intestate and damages to the automobile in which he was riding, by consent consolidated and tried together in the superior court.
On October 21, 1920, W. J. Haynes, while attempting to drive his wife's machine over the defendant's track at a public crossing in Hazelwood, N. C., was struck and killed by a freight train of the Southern Railway Company, and the automobile was badly damaged and demolished.
The administrator brings suit to recover damages for the alleged wrongful death of his intestate; and the wife of the deceased sues to recover for the damage done to her car. For convenience and by consent the two actions were consolidated and tried together; the evidence upon the question of liability being the same in both cases.
Upon the issues of negligence, contributory negligence, last clear chance, and damages all being answered in favor of the plaintiff in each case, and from the judgments rendered thereon, the defendants appealed.
Evidence in action for injuries caused by a slowly moving train colliding with an auto held to warrant finding against defendant on the issue of last chance, under the rule that notwithstanding plaintiff's contributory negligence, if defendant by exercise of ordinary and reasonable care could have avoided the injury, and failed to do so, and had the last clear chance to so avoid it, it is liable.
Martin Rollins & Wright, of Asheville, for appellants.
John M Queen and Felix E. Alley, both of Waynesville, for appellees.
The injuries out of which the present suits arise were caused by a collision at a public crossing in the village of Hazelwood between an automobile in which W. J. Haynes was riding and a freight train of the Southern Railway Company. The train was slowly pulling out from the station, moving at a rate of from 2 1/2 to 3 miles an hour, when plaintiff's intestate drove upon the crossing and was pushed down the track by the engine for a distance of about 72 feet and killed.
It was shown by all the evidence that no warning was given of the train's starting and of its approach. The engineer was in his cab, but the witnesses differ as to whether the fireman was on his side where he could have...
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