Henderson v. Durham Traction Co.

• Decision Date: 06 June 1903
• Citation: 44 S.E. 598,132 N.C. 779
• Parties: HENDERSON v. DURHAM TRACTION CO.
• Court: North Carolina Supreme Court

44 S.E. 598

132 N.C. 779

HENDERSON v. DURHAM TRACTION CO.

Supreme Court of North Carolina

June 6, 1903

Appeal from Superior Court, Durham County; W. R. Allen, Judge.

Action by Talmage Henderson against the Durham Traction Company. From a judgment for defendant, plaintiff appeals. Reversed.

Whether a street railway company was negligent in operating a car without a fender, as required by law, was a question for the jury.

Boone Bryant & Biggs, for appellant.

Manning & Foushee, for appellee.

CONNOR J.

This action was brought by the plaintiff, an infant suing by his next friend, for damages alleged to have been sustained by reason of personal injuries suffered by being struck by the defendant's street car in the city of Durham.

The complaint alleges that on or about the 30th day of July 1902, the plaintiff was passing from his employer's place of business to the south side of Main street, where the defendant has a double track, about 5 feet apart; that about 9 o'clock p. m. a car was going westward on the northern track, and another car was going eastward on the southern track, and he came out of the drug store to cross the street just as the car going west-ward was passing the door, and stopped for it to go by, and this car kept him from seeing the east-bound car; that he was ignorant of the approach of that car, and as he stepped from the southern one of the double tracks he was struck by the east-bound car, knocked down upon the track, caught under the car, and dragged the distance of 20 yards or more, and was seriously injured. The complaint alleges that the defendant was negligent in three respects: (1) That, at the time of the approach of the car which injured the plaintiff, the motorman negligently and carelessly failed to sound the gong; (2) that, at the time of the injury complained of, the defendant had negligently and carelessly failed to properly equip its car which struck and injured the plaintiff with approved safeguards and appliances then in general use, in that it did not have a fender in front of said car, and, if said car had been properly equipped with a fender, the injury would not have occurred (3) that if the defendant's motorman had been keeping a proper lookout, as reasonable and ordinary care required him to do, he could have discovered the plaintiff in time to have given warning, or stopped the car in time to save him from injury. The defendant, in its answer, denied each and every allegation charging negligence, and alleged that the plaintiff by his own carelessness and negligence contributed to the injury which he sustained. The following issues were submitted to the jury: "(1) Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? (2) Did the plaintiff, by his negligence, contribute to his injury? (3) If so, notwithstanding the negligence of the plaintiff, could the defendant, by the exercise of ordinary care, have avoided the injury? (4) What damage is the plaintiff entitled to recover?" Upon the conclusion of the testimony his honor intimated that he would instruct the jury to answer the first issue, "No." In deference thereto, the plaintiff submitted to a judgment of nonsuit, and appealed.

The plaintiff introduced James Rogers, who testified that he saw the accident, and it occurred on Main street, between Fitzgerald's drug store and Five Points; that there are two street car tracks on Main street at the place of the accident, and the plaintiff was hurt by the car on the south track--the car going east. The witness was on the south side of Main street, and, when he first saw the plaintiff, he (plaintiff) was coming out of the drug store, on the north side of the street, nearly opposite the witness, and started running across to the other side of the street. As he started across, he looked up, and saw the car going west, and stopped for it to pass. This car going west made no stop, and, as it passed, the plaintiff started to cross the track, and the car going east caught him. He stepped behind the car going west. The witness does not think he could see the car going east, because of the car going west. The two tracks are about five feet apart. The car that caught the plaintiff was not running very fast; that is, it was running at an ordinary rate of speed. When the car hit the boy, the motorman was noticing the car going west--was not looking to the front, but at the car going west. The motorman on the car that struck the boy seemed to speed up a little, and "I holloed at the motorman, and told him that there was a boy under the car. Then he stopped the car, and asked me where the boy was, and I told him he was under the car. The boy was struck by the front of the car. There was no fender on the car. I could not see the boy at first. He was next to the front wheels, with his head against the wheels, his feet under the car, towards the west, and his body between the rails. His head was next to the wheel on the other rail, and he was dragged about 20 yards. A fender is something in the front of a car, like a cowcatcher, and runs within 8 inches of the rails. From the rail to the bed of the car is about 2 feet. The boy seemed to be dead under the car, and there was some talk whether they would move the car. There was nothing to prevent the boy from seeing the cars when he started from the store. When he started across the street, the cars were about 25 yards apart. This was not a street crossing. The boy started to run just as the car going west passed him, and had gotten to the middle of the track when the car going east struck him and knocked him down. The cars had not quite passed each other when the boy was struck. It was about half past nine o'clock at night. It was a summer car, and open. Trucks on the car do not come up to the front. The wheels are three or four feet from the front. There is a beam in front of the wheel, which is eight inches above the track, and this beam had passed over the boy when the car stopped. I heard the gong, but don't know on which car it was sounded."

The plaintiff testified that he got hurt, and has not been able to remember anything about how he got hurt; that he started running; the cars passed the store every day and night; he had seen them pass with a bright light; knew where they passed each other, and could see a car plainly at Five Points, but did not remember seeing the car that night, nor anything about what occurred. He testified to the extent of his injuries.

The defendant introduced W. N. Latta, who testified that he was motorman on the car that struck the boy; that the car was going east, and, just as it passed the car going west, the boy darted into the car at the front end; that the car was lighted up, and had a headlight, and was a summer car. Gongs on both cars were ringing. The seats on the summer cars run entirely across, and parties get on at the side, first on the running board. The guard beam in front of the wheel is about 4 1/2 inches from the pavement. When the witness saw the boy he applied brakes and stopped the car as soon as he could. It went about 20 feet before he could stop. It was up grade, and was going from 4 to 6 miles an hour. The cars pass each other at that point from 48 to 60 times a day. Witness heard no one until after the car stopped. When the boy went under the car, "he kinder squealed." It took from 10 to 20 seconds to stop. The sill of the car in front is about 2 feet 5 inches from the pavement. The boy did not go...