Lassiter v. Raleigh & G. R. Co

• Citation: 133 N.C. 244,45 S.E. 570
• Court: United States State Supreme Court of North Carolina
• Decision Date: 27 October 1903
• Parties: LASSITER. v. RALEIGH & G. R. CO. et al.

45 S.E. 570
133 N.C. 244

LASSITER.
v.
RALEIGH & G. R. CO. et al.

Supreme Court of North Carolina.

Oct 27, 1903.

RAILWAY EMPLOYE—CONTRIBUTORY NEGLIGENCE—NEGLIGENCE—WATCHMAN ON TRAIN —EVIDENCE—QUESTION FOR THE JURY.

1. A conductor, in charge of a freight train in a railroad yard, who, while giving instructions, steps from a place of safety onto a side track without looking, is guilty of contributory negligence precluding a recovery for his death by his being run over by a shifting engine, unless defendant was also negligent and had the last clear chance to avoid the injury.

2. A freight conductor, while giving instructions to his train crew, stepped from a place of safety onto a sidetrack, on which a shifting engine with box cars attached was moving backwards at the rate of about four miles an hour towards the conductor, who had his back turned to it. There was no watchman on the box cars, and the engineer could not see the conductor on the track. The conductor, if notified of his peril, could have got off before the cars struck him. Held, that the question whether the company's failure to perform its duty in having a watchman on the box cars was the proximate cause of the accident was for the jury.

Appeal from Superior Court, Wake County; Bryan, Judge.

Action by Albert Lassiter, administrator of the estate of A. C. Lassiter, deceased, against the Raleigh & Gaston Railroad Company and others. From a judgment for defendant, plaintiff appeals. Reversed.

Battle & Mordecai and N. Y. Gulley, for appellant.

Day & Bell and Thos. B. Wo-mack, for appellee.

MONTGOMERY, J. The plaintiff's intestate, A. C. Lassiter, a freight conductor in the defendant's service, was standing between the main track and a side track in the defendant's yard in the town of Henderson, giving instructions to the hands on the top of the box cars as to the movements of his train. The train of which he was in charge was on the main track, and backing towards him. He was looking at it as he gave the signals to the hands. On the side track a shifting engine, with two box cars attached, was moving backwards at the rate of about four miles an hour in the direction of the intestate, his back being turned to the shifting engine. When the box cars attached to the shifting engine were within about 20 steps of the intestate, he stepped from a safe place between the track upon the side track with his back towards the shifting engine, and when engaged in giving orders to the men on the top of the box cars of his own train he was run over and killed by the box cars attached to the shifting engine. A person (Henry Thomason) who chanced to be passing by endeavored to attract the attention of the intestate, by hallooing, to his peril, but to no avail. There was no watchman on the box cars of the shifting engine. The engineer, from his cab, could not have seen the deceased on the side track. There was no evidence that the bell was not ringing, nor any that the whistle was not sounding. The evidence was to the above effect and we have recited it as true for the present case, for the plaintiff was nonsuited on the motion of the defendant, because his honor deemed it insufficient to go to the jury on the question of the defendant's negligence.

We have no case in our Reports where the facts are similar to those in this case. In Smith v. Railroad, 131 N. C. 616, 42 S. E. 976, the plaintiff was employed by the defendant company to paint targets very near the defendant's track, and was injured by a shifting engine. Smith placed the paint bucket between the rail and his feet, and in the act of a second stooping over to dip his brush in the paint his head was stricken by a passing engine. The track was perfectly straight for 600 feet, and there was no obstruction of Smith's vision. The jury found there was no signal given by bell or whistle. The court said there that the engineer had a right to assume that the plaintiff would step out of danger if he had peradventure

[45 S.E. 571]

gotten too near the track, or that he would not put his head in danger by leaning over to dip his brush in the paint as the engine was passing by. In that case neither the speed at which the engine was running nor the rules of the defendant company in reference to the notices and signals to be given by its engineers to persons at work on its tracks were considered, for they were not of importance in the trial as it was conducted in the court below. When the case was before this court again at February term, 1903 (132 N. C. 819, 44 S. E. 663), it appeared from the then constituted case that the engine which struck Smith, the plaintiff, was moving at a rate of speed prohibited by city ordinance, and that the rules of the defendant company requiring the ringing of the bell or the sounding of the whistle to give notice to employes at work on the track were also introduced, and formed an important part of the trial and case. In the case as last reported the court held that the violation of the rules of the company and the rapid rate of...