Herring v. The Wilmington & Raleigh Rail Rd. Co.

• Decision Date: 31 December 1849
• Citation: 32 N.C. 402,10 Ired. 402,51 Am.Dec. 395
• Court: North Carolina Supreme Court
• Parties: ELISHA HERRING v. THE WILMINGTON & RALEIGH RAIL ROAD COMPANY.

10 Ired. 402

32 N.C. 402

51 Am.Dec. 395

ELISHA HERRING

v.THE WILMINGTON & RALEIGH RAIL ROAD COMPANY.

Supreme Court of North Carolina.

December Term, 1849.

The position is not tenable, that whenever damage is done, the law implies negligence.

But where the plaintiff shews damage, resulting from the act of the defendant, which act, with the exertion of proper care, does not ordinarily produce damage, he makes out a prima facie case of negligence, which cannot be repelled, but by proof of care, or some extraordinary accident, which makes the care useless.

What amounts to negligence is a question of law.

In an action on the case against a Rail Road Company for the negligence of their agent in running over and killing a slave, where it appeared that the slave was asleep on the tract, that the cars were going with their usual speed and at the usual hour, and the engineer, when within a short distance of the slave, attempted to stop the engine by letting off the steam and reversing the wheels, Held, that was not a case of negligence to subject the company to damages.

The case of Ellis v. Ports. & Roan. R. R. Co., 2 Ire. 138, cited and approved.

Appeal from Sampson Superior Court of Law at a Special Term in December 1849, his Honor Judge BATTLE presiding.

This was an action of the case, brought by the plaintiff to recover damages of the defendants for negligent management of their cars, whereby one of the plaintiff's slaves was killed and another badly wounded. On the trial it was proved, that, on a certain Sunday in the month of August 1845, about two o'clock in the afternoon, a train of cars, belonging to the defendants, was passing along their road at the usual rate of 15 or 20 miles an hour, when the wheels of the cars passed over one of the plaintiff's slaves and killed him instantly, and badly injured the hand of another.

It was admitted, that the slaves were asleep at the time, but it was disputed, upon the evidence, whether they were lying on the bed of the road or just outside of it, or whether the one who was killed was not sitting asleep on one of the rails, no witness having seen them until after the injury, when the body of the deceased was found on the bed of the road with his thigh and arm both crushed. The day was clear, and the part of the road, where the slaves were, was straight for more than a mile, but the slaves were under the shadow of a bridge, which connected the two sides of a deep cut, sixty feet wide at top at that place. The witnesses differed as to the distance, at which the slaves might have been seen by the engineer, who had the management of the cars, had he been looking out for them: some stating it to be half a mile, and others at two hundred yards. It was proved, that the train of cars was the regular mail train, and that it was passing at the usual hour, and that the plaintiff owned the plantation at the bridge on both sides of the road. The defendants, for the purpose of showing that the injury was not occasioned by any fault of their agent, offered to introduce, as a witness, the captain of the train, but it was objected, that he was interested, because of his being responsible to the defendants, if a recovery was had against them. It appearing, however, upon his examination to that point, that he had nothing to do with the running of the cars, that being under the exclusive direction of the engineer, who was appointed by, and responsible to, the company, and not to the captain, he was admitted. From the testimony of him and other witnesses it appeared, that when the cars were very near the slaves, just before it passed over the one who was killed, the engineer attempted to stop the cars by letting off the steam and reversing the wheels, but the impetus, which they had received, carried them on about seventy yards before they stopped. It was proved to be the duty of the engineer, whose station is on the right side of the engine, to keep a look out for obstructions on the road. It was further proved, that, when the train was moving at the rate of 15 or 20 miles an hour, it could not be stopped suddenly in a shorter space than seventy five or a hundred yards. The engineer was proved to be ordinarily skilful. The plaintiff contended, that it was only necessary to prove, that the injury was done to his slave by the defendants or their agent, and the law would imply that it was done negligently, until the contrary was shown. The plaintiff contended further, that he was in no default; for, that, admitting it to have been wrong in his slaves to have gone to sleep on the defendants' road, at the time when their train of cars usually passed, he was not to be affected by their wrongful act. But that, if the fault of his slaves could be imputed to him, he was still entitled to recover, if the defendants were, as he contended they were, guilty of neglect on account of their agent, the engineer, not keeping a proper look out, and by such default not having seen his slaves in time to prevent running over them. In other words, that notwithstanding his, the plaintiff's default, the defendants' misconduct was the proximate cause of the injury, and they were therefore responsible for it. The defendants contended, that, as the plaintiff was guilty of the first negligence by his slaves going to sleep on their road at such an unseasonable hour, he brought the injury on himself and could not recover, even supposing their agent was, though they contended he was not, guilty of some negligence.

The Court charged the jury, that to entitle the plaintiff to recover he must show, that he had sustained an injury by the negligent conduct of the defendants' agent: that the plaintiff's slaves were guilty of neglect in going to sleep upon the defendants' road at the time and under the circumstance stated by the witnesses, and that the fault of his slaves was imputable to the plaintiff: this circumstance, though it would not in all cases excuse neglect on the part of the defendants, yet would diminish the amount of prudence and care required of them: that, if the plaintiff's slaves had been crossing the rail road along an ordinary public high way, where they had a right to be, the defendants would be responsible for any neglect of their agent, the engineer, in keeping a proper look out, if such neglect were the cause of injury to the slaves; but that, under the circumstances of this case, such precautions in keeping a look out could not be expected or required from the engineer, and the defendants were not responsible, unless their engineer, after seeing the slaves, failed to use all the means in his power to prevent injuring them, and that they were responsible, if he did fail to use such means after seeing the slaves.

The jury returned a verdict for the defendants. And the plaintiff, after an ineffectual motion for a new trial, appealed to the Supreme Court.

Strange and D. Reid, for the plaintiff , relied upon the following authorities.

Huggett v. Montgomery, 5 Bos. & Pull. 446. Williams v. Holland, 10 Bing. 112, (25 E. C. L. R. 50)?? 1 Petersdorf's Abridgement 112. Walman v. Robinson, 1 Bing. 213. Dean v. Clayton, 7 Taun. 489, (2 E. C. L. R. 183.) Peggitt v. Eastern Co. R. R. Co., 54 E. C. L. R,...