Jenkins v. Southern Ry. Co.
| Citation | 146 S.E. 83,196 N.C. 466 |
| Decision Date | 09 January 1929 |
| Docket Number | 601. |
| Parties | JENKINS v. SOUTHERN RY. CO. et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Haywood County; Cameron F. MacRae Special Judge.
Action by J. R. Jenkins, as administrator of the estate of Levi Jenkins, deceased, against the Southern Railway Company and others. Judgment dismissing the action as upon nonsuit, and plaintiff appeals. Reversed.
Conflicting evidence as to whether train operators could have seen person sitting on cross-tie in time to avoid striking him held for jury.
Action to recover damages for the wrongful death of plaintiff's intestate, who was struck and killed by a moving freight train of the defendant Southern Railway Company, operated at the time by the other defendants, as engineers and firemen who were charged with the duty of keeping a lookout for persons on the track in front of the moving train. The train was composed of two heavy locomotive engines, and ten or twelve cars. It was running as a "double-header."
Plaintiff's intestate, at the time he was struck and killed by train, was sitting on the end of a cross-tie, apparently unconscious of the approach of the train. He was not at or near a crossing public or private, nor was he an employé of defendant railway company. He had been walking on the track shortly before he sat down on the cross-tie, on his way from Lake Junaluska to his home. There was evidence tending to show that the track at this point was constantly used by the public, to the knowledge of defendants, as a walkway. Deceased was walking on the track as a licensee, and not as a trespasser. There was evidence tending to show that he was returning to his home because he was ill, and that he was ill when he sat down upon the cross-tie. He remained there for some time, unconscious of his peril, because of his illness. He failed to respond to a warning given him by a witness of the approach of the train, when the train was 40 or 50 feet from him. There was no blowing of the whistle or ringing of the bell on the engine, as the train approached him. The noise made by the moving train could have been heard by him, but no signal was given indicating that the engineers or firemen had seen the deceased before the train struck him.
It is alleged in the complaint that defendants and each of them failed to exercise due care to keep a proper lookout from the train for persons who were or who might reasonably be expected to be on the track in front of the moving train, at the point where deceased was sitting on the cross-tie, and that such failure was the proximate cause of the injuries which resulted in the death of plaintiff's intestate.
From judgment dismissing the action, as upon nonsuit, at the close of the evidence, upon motion of defendants, plaintiff appealed to the Supreme Court.
W. R. Francis and Alley & Alley, all of Waynesville, for appellant.
Thomas S. Rollins, of Asheville, for appellees.
There was error in allowing defendants' motions for judgment as of nonsuit, at the close of the evidence, and in the judgment dismissing the action.
There was evidence tending to show that defendants and each of them failed to exercise due care to keep a vigilant and proper lookout from the moving train for persons who were or who might reasonably be expected to be on the track in front of the train, where plaintiff was sitting on the end of the cross-tie, and that such failure was the proximate cause of the injuries which resulted in the death of plaintiff's intestate.
The evidence was sufficient to sustain a finding by the jury that, if a proper lookout had been kept by defendants plaintiff's intestate would have been discovered on the track in time for the train to have been stopped before it reached and...
To continue reading
Request your trial