Hudson v. Norfolk-southern R. Co

• Decision Date: 16 September 1925
• Docket Number: (No. 21.)
• Citation: 129 S.E. 146
• Parties: HUDSON. v. NORFOLK-SOUTHERN R. CO.
• Court: North Carolina Supreme Court

129 S.E. 146

(190 N. C. 116)

HUDSON.

v.NORFOLK-SOUTHERN R. CO.

(No. 21.)

Supreme Court of North Carolina.

Sept. 16, 1925.

Appeal from Superior Court, Beaufort County; Cranmer, Judge.

Action by Sadie A. Hudson, administratrix of William Hudson, deceased, against the Norfolk-Southern Railroad Company. From a judgment for plaintiff, defendant appeals. New trial.

This is an action to recover damages for death of plaintiff's intestate, alleged to have been caused by the negligence of defendant. The issues were answered by the jury as follows:

(1) Was plaintiff's intestate killed by the negligence of defendant, as alleged? Answer: Yes.

(2) If so, did plaintiff's intestate by his own negligence contribute to the said death? Answer: Yes.

(3) If so, could the defendant, notwithstanding the contributory negligence of the deceased, by the exercise of reasonable prudence and proper care, have avoided killing the deceased? Answer: Yes.

(4) If so, what damages, if any, is the plaintiff entitled to recover? Answer: $480.

From judgment on this verdict, defendant appealed.

Small, MacLean & Rodman, of Washington, N. C, for appellant.

Ward & Grimes, of Washington, N. C, for appellee.

CONNOR, J. The jury having answered the first and second issues in the affirmative, plaintiff was not entitled to recover of defendant damages for the death of her intestate, unless, upon the evidence, she could in voke successfully the principle of law upon which the doctrine of the "last clear chance" is founded. Although the death of plaintiff's intestate was caused by the negligence of defendant, the right to recover damages was barred by the contributory negligence of the deceased, unless, notwithstanding such contributory negligence, defendant could, by exercise of proper care, have avoided the injury. Such contributory negligence was relied upon by defendant as a defense to plaintiff's action to recover damages by reason of the negligence of defendant; it was set up in the answer of the defendant, and, as appears by the answer of the jury to the second issue, was proved on the trial. C. S. § 523. Plaintiff's intestate was not an employee of defendant railroad company (C. S. § 3467); he was struck by defendant's train while on its track at its intersection by a farm road. Plaintiff, to repel the bar to her recovery on account of the contributory negligence of her intestate, relied upon the doctrine of the "last clear chance, " contending that, the jury should answer the third issue "Yes." Upon this issue the court charged as follows:

"So, gentlemen, we are considering now the third issue: 'If so (that is, if plaintiff's intestate was guilty of contributory negligence) could the defendant, notwithstanding the contributory negligence of the deceased, by the exercise of reasonable prudence and proper care, have avoided killing the deceased?' The burden of the issue, gentlemen of the jury, is upon the defendant to satisfy you by the greater weight of the evidence. This involves the doctrine of what the law calls the last clear chance; that the defendant, as plaintiff contends in this action, had the last chance to avoid the injury resulting in the death of plaintiff's intestate, Mr. William Hudson. Now, as I have stated to you, the burden of the issue is upon the defendant to satisfy you by the greater weight of the evidence."

Defendant excepted to this instruction, and assigns same as error.

The late Chief Justice Clark, in his concurring opinion in Horne v. Railroad. 170 N. C, at page 653, 87 S. E. 527, Ann. Cas. 1918A, 1171, says:

"The decisions are uniform that in cases of injury to a trespasser on the track there should be a third issue submitted, 'whether, notwithstanding the contributory negligence of the plaintiff, the defendant could with reasonable care have avoided the injury, ' and that the burden of this issue is upon the defendant."

It was stated upon the argument of the appeal in this court that the judge presiding at the trial cited and relied upon this statement as authority for his instruction. We are unable to reconcile this statement, as to the burden of proof upon the issue as to the "last clear chance, " with the law as declared by this court in its opinion, written by Douglas, J. in Cox v. Railroad, 123 N. C. 604, 31 S. E. 848. It is there said:

"It would almost seem needless to repeat what we have so often said, that the burden of proving negligence rests upon the plaintiff, while the onus of showing contributory negligence rests...