High v. Carolina Cent. R. Co

• Decision Date: 28 March 1893
• Citation: 17 S.E. 79,112 N.C. 386
• Court: North Carolina Supreme Court
• Parties: HIGH. v. CAROLINA CENT. R. CO.

17 S.E. 79

112 N.C. 386

HIGH.

v.CAROLINA CENT. R. CO.

Supreme Court of North Carolina.

March 28, 1893.

Railroad Companies—Injury to Person on Track—Appeal—Record.

1. Where an engineer sees, walking on the track in front of the engine, a woman whom he does not know at all, or who is known by him to be in full possession of her senses and faculties, he is justified in assuming, up to the last moment, that she will step off the track In time to avoid injury, if there is nothing apparent to him that can prevent her getting off the track, and if she is injured the railroad company is not liable. McAdoo v. Railroad Co., 11 S. E. Rep. 310, 105 N. C. 140, followed. Deans v. Railroad Co., 12 S. E. Rep. 77, 107 N. C. 686; Bullock v. Railroad Co., 10 S. E. Rep. 988, 105 N. C. 180; Clark v. Railroad Co., 14 S. E. Rep. 43, 109 N. C. 430, —distinguished.

2. The record on appeal from the superior court of a county is fatally defective if it does not show that a superior court was opened and held for such county at all.

Appeal from superior court, Bladen county; Winston, Judge.

Action by Sarah High against the Carolina Central Railroad Company for personal injuries. From a judgment for defendant, plaintiff appeals. Affirmed.

Action tried at fall term, 1892, of Bladen superior court, before Winston, J. The action was brought by plaintiff to recover damages alleged to have resulted by reason of defendant's negligence. The following issues were submitted to the jury, by consent: (1) Was the plaintiff Injured by the negligence of defendant, as alleged? (2) Did plaintiff, by her own negligence, contribute to the injury? (3) Did plaintiff execute the release set out in the answer? (4) If plaintiff executed the release, did she understand the meaning and effect of it? (5) What damage, if any, is the plaintiff entitled to? The plaintiff testified as follows: "I was on the railroad at Rosindale on February 4, 1S91, — on the side track, —and did not hear the engine until It ran over my foot. It had touched me before I heard It, and I jumped as I was going from the train. Heard no whistle or bell. My right foot was crushed, and the doctor cut it off. Was in bed for three or four weeks. Train was running slowly, and went only a short distance after It struck me. It was a freight train." Upon cross-examination plaintiff said: "I first saw the train below the end of the switch. It was then moving on the main track. This was when I first came up to the railroad crossing. I first was on the main track, and then got on the side track. I got on the main track at Clark's store, at Rosindale, and went up the same a short distance to the pump house. Did not look back again. If I had looked back, I could have seen the engine. It was a straight track. I could have stepped off the side track. I was going home from Clark's house, but did not follow the dirt road. I went up the railroad. The dirt road to my house crosses the railroad. i could have crossed over the side track, but did not. I had seen the train below me. No trestle on the road near Roslndale; no embankment; no fences. I was in the middle of the side track when the engine struck me, and I got all off but my foot" On redirect examination she stated: "I live a mile from Rosindale, and the county road leads by my house to Elizabethtown. No dirt road near railroad track. The doctor came the night I was hurt. I was hurt in the morning. He gave me no medicine to quiet me. I could have walked along the side of the railroad at the point I was struck." Clark, sheriff, a witness for the plaintiff, testified: "I was at my store, 50 or 75 yards from the plaintiff, when the accident happened, and saw her a little while afterwards. The engine was running slowly when it passed my store. Heard no bell or whistle, but heard the whistle blow for the station where freight was put off that morning. Freight trains usually go on main track until freight is put off. Engineer could have stopped the train in ten feet, at the speed he was going. It was up grade a little at that point. Plaintiff was suffering, but was conscious, and wanted to go home. By the side of the cross-ties is a path and a dirt road which was a half mile out of her way home. I think the mail train was at the tank, and both trains blew for the station There was nothing there to prevent one's seeing the train. Plaintiff could have crossed the side track after she crossed the railroad, and might have gone along the side of the track. She said to me that she thought the engine was on the straight track until it brushed her, and she jumped and fell, and that it was her own fault that caused the Injury. Have known plaintiff for several years. She is neither blind nor deaf nor crazy, nor was she lame before receiving the injury. Rosindale is a place on the defendant railroad, where there Is located nothing but a wood rack and pump house." James Councill, a witness for plaintiff, and her brother-in-law, testified: "I went to see the plaintiff, and waited on her for four weeks. She suffered pain,...