Hollingsworth v. Skelding

• Decision Date: 16 October 1906
• Citation: 55 S.E. 212,142 N.C. 246
• Parties: HOLLINGSWORTH v. SKELDING.
• Court: North Carolina Supreme Court

55 S.E. 212

142 N.C. 246

HOLLINGSWORTH v. SKELDING.

Supreme Court of North Carolina

October 16, 1906

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

Action by C. C. Hollingsworth against A. B. Skelding, receiver, etc. From a judgment in favor of plaintiff, defendant appeals. Reversed, with instructions to dismiss the action.

Clark C.J., and Hoke, J., dissenting in part.

In an action for injuries to a passenger, evidence held insufficient to sustain his theory that the injury was caused by the collision of the street car with an ice wagon, causing it to turn completely around, so that its rear end struck him, where he was situated near the rear of the car.

Action to recover damages for a personal injury received by the plaintiff while a passenger on the cars of the Wilmington Street Railway Company. There was evidence tending to prove that plaintiff had one foot on the running board and the other on the floor, and was injured by an ice wagon coming in contact with him. The court submitted the following issues "(1) Was the plaintiff injured by the negligence of the defendant? Answer: Yes. (2) Was the plaintiff guilty of negligence which contributed to his injuries? Answer: No. (3) What damage, if any, is plaintiff entitled to recover? Answer: $600." At the conclusion of the plaintiff's evidence the defendant moved to dismiss the action and for judgment of nonsuit. Motion overruled, and defendant excepted, and appealed from the judgment.

Davis & Davis, for appellant.

Stevens Beasley & Weeks, for appellee.

BROWN J.

His honor charged the jury that "carriers of passengers are insurers as to their passengers, subject to a few reasonable exceptions. They are held to exercise the greatest practicable care, the highest degree of prudence, and the utmost human skill and foresight which has been demonstrated by experience to be practicable. They are so held upon the ground of public policy, reason, and safety to their patrons. The exceptions are the act of God and the public enemy. If these--that is, the act of God, or of the public enemy--be the proximate cause of the injury, and without any neglect on the part of the carrier, the carrier is not liable. He is, against all perils, bound to do his utmost to protect and prevent injury to his passengers." It is due to the learned judge who tried this case to state that this instruction appears to have been given verbatim from the opinion of Faircloth, C.J., in Daniel v. Railroad, 117 N.C. 602, 23 S.E. 327. An examination of the case discloses that it is a mere dictum, a generalization, not necessary at all to the decision of the case. As a proposition of law it is not supported by authority, but, on the contrary, is against the teachings of the text-writers as well as the judgments of the courts. It does not, therefore, meet with our approval. The rule laid down by the late Chief Justice applies to the transportation of freight and all classes of inanimate objects only. The reasons given for this rule by Lord Holt were "to prevent the clandestine combinations with thieves and robbers to the undoing of all persons who had dealings with them." Hutchinson says this rule was never applied to carriers of passengers. Hutchinson on Carriers, § 4497. The Supreme Court of the United States in an elaborate opinion by Chief Justice Marshall refuse to apply the rule to slaves. He says: "In the nature of things and in his character he resembles a passenger, not a package of goods. It would, therefore, seem reasonable that the responsibility of the carrier should be measured by the law which is applicable to passengers, rather than by that which is applicable to the carriage of common goods." Boyce v. Anderson, 2 Pet. (U. S.) 150, 7 L.Ed. 379. When the attempt is made to hold the carrier responsible for injuries received by living human beings, negligence is the essential element in the case, and without it the injured person cannot recover. This is universally true where the common law is administered. Grote v. Railroad, 2 Exch. 251; Hale on Bailments and Carriers, 517; Fetter on Carriers, 5-8; Thompson on Carriers,§ 497; 2 Wood, Railway Law, 1054-1059, and notes; 2 A. & E. Ency. (1st Ed.) 746, 747, where numerous authorities are collected. The degree required of the passenger of carriers has been the subject of much discussion by text-writers and judges. The weightiest authorities agree that this standard does not extend beyond the highest degree of a practicable care. Fetter, Carriers, § 11. We doubt if any better definition of the duty a carrier owes the passenger can be found than that of Lord Mansfield in Christie v. Griggs, 2 Camp. 79: "As far as human care and foresight could go he must provide for their safe conveyance." In commenting upon this case Mr. Barrow says: "It must not be supposed, however, that the law requires the carrier to exercise every device that the ingenuity of man can conceive. Such an interpretation would act as an effectual bar to the business of transporting people for hire." In view of these authorities and many others we could quote, the judge erred in the instructions given, although, in doing so, he followed the language of the late Chief Justice in the Daniel Case.

2. The defendant offered no evidence, and in apt time moved to dismiss the action and to nonsuit the plaintiff upon the ground that there was no evidence of negligence. The only theory of negligence upon which the plaintiff's counsel rested his case in this court is that the ice wagon was in the act of crossing the car track in front of the car, when it was struck by the car and knocked completely around, so that its rear end struck the plaintiff, and that the motorman was guilty of negligence. The plaintiff was the only witness who testified concerning the accident, and an examination of his testimony shows that this theory is purely conjectural and has no foundation in fact to support it. The plaintiff was near the rear end of a car, about 25 feet long. Running the length of this car is a running board, about 18 inches from the ground, used by passengers in getting on and off. The plaintiff testified: "The conductor called on me for my fare, and I said, 'All right,' and I got up out of my seat, and put one foot on the running board and one on the floor of the car, so I could put my hand in my pocket, and got a nickel and paid him, and when I put by hand back in my pocket the wagon of Worth & Co. came up and struck me. It knocked me senseless for a minute or two, and when I came to my senses some one had hold of me. I did not see the ice wagon before the collision. At the time of the collision the street car was running at a pretty good speed." The wagon belonged to Worth & Co., and it is in evidence that at the time that the plaintiff was injured it was moving in an opposite direction from that in which the car was going, and was drawn by a horse guided by a driver. On cross-examination the plaintiff says: "I think it was the rear end of the wagon, and it struck me on the right side." The collision which the plaintiff refers to is evidently the collision of the wagon with himself; for there is no evidence that the wagon struck the car itself anywhere. Had the front of the car crashed into the wagon, while crossing the track, with sufficient force to knock it entirely around, the plaintiff must have felt the jar before he was hurt, and could have testified to this. According to his version there must have been no previous jar and crash. The horse, driver, and wagon had passed the motorman in safety before the plaintiff was hit. It is hardly within the domain of possibility that the car could have hit the wagon on the track and knocked it so entirely around that its rear end struck the plaintiff. Had such been the case, the horse could not have been pulling the wagon in an opposite direction from that in which the car was moving at the time the rear end of the wagon hit the plaintiff. Such a blow must have turned the horse around, as well as the wagon, and demolished the latter. Again, the plaintiff says that when the rear end of the wagon struck him, the car was running at "a pretty good speed." This could not have been true, had there been a collision immediately before on the track by the car running into the wagon. The force of such an impact would not only have been plainly felt by the passengers, but must have stopped the car, or have greatly reduced its speed before the rear end of the wagon could hit the plaintiff at the rear end of the car.

We conclude that, taking the account of the accident given by the plaintiff in the light most favorable to him, no reasonable deductions can be drawn from it tending to sustain the only theory of negligence advanced by counsel. The motion to dismiss the action and nonsuit the plaintiff should have been granted. The cause is remanded to the superior court of Duplin county, with instructions to so order.

It is suggested that a new trial should be ordered in this case. We do not think so. If the plaintiff can "mend his lick," and produce new evidence, this court has declared that he has a right to bring a new action within 12 months. Meekins v. Railroad, 131 N.C. 1, 42 S.E. 333. If we ordered a new trial and the plaintiff should gather additional evidence, which possibly he should have had on the first trial, and thereby recover against the defendant, the latter would be taxed with the entire costs, including the first trial, in which plaintiff failed on his own showing. Williams v. Hughes, 139 N.C. 17, 51 S.E. 790. For this "false clamor" the plaintiff should pay the costs. To order a new trial in this and similar cases works injustice to defendants and is against the meaning and spirit of the statute. Revisal 1905, § 539. As the...