Lay v. Richmond & D. R. Co

• Decision Date: 21 April 1890
• Citation: Lay v. Richmond & D. R. Co, 11 S.E. 412, 106 N.C. 404 (N.C. 1890)
• Court: North Carolina Supreme Court
• Parties: Lay. v. Richmond & D. R. Co.

11 S.E. 412

106 N.C. 404

Lay.

v.Richmond & D. R. Co.

Supreme Court of North Carolina.

April 21, 1890.

Railroad Companies—Private Crossings—Trespassers.

1.In crossing a railroad track on horseback, on a private way, plaintiff's horse caught its shoe between the rail and a spike, and was thrown down, and, its foot still remaining caught, was injured by a dump-car which came along soon after, and which plaintiff had signaled in time to stop before running over the horse.The safety of the place as a crossing was in dispute.Held, that it was error to withdraw the question of contributory negligence from the jury.

2.That plaintiff was a trespasser in attempting to cross a railroad track at a place other than a public crossing will not excuse the company from an injury which, by ordinary care, it could have avoided.

Civil action, tried at spring term, 1890, of the superior court of Gaston county, before Philips, J.The plaintiff demanded $200 for injuries to a horse, which he alleged was injured by the negligence of the defendant, and which was denied by the defendant, as set out in the pleadings, all of which, with the issues submitted to the jury, appear in the record.

Plaintiff offered himself as a witness, and swore: "In November, 1887, I was riding my horse across defendant's railroad track.When he reached the last rail in the direction in which I was going, he set his foot down so as to catch the toe of the shoe between the rail and the spike driven there for the purpose of holding therail down.This spike was not driven home.I could put my hand between it and the tie.The horse gbt hung in this way, and fell over on the outside of the track, his body being on the outside, and his foot caught, as described, on the inside of the track.I went to the house of my brother(Rufus Lay,) to get him to help me get the horse up.This was about one and a half miles from Gastonia, in the direction of Charlotte.My brother and I tried to pull the horse up so as to loose him, but could not. 1 heard the dump coming from towards Charlotte.My brother ran thirteen or fourten yards beyond a private crossing, about ninety-seven yards from the horse, towards the dump.I myself ran about thirty yards in the direction the dump was coming.Then I had to get off the track, out of the way of the dump. 1 said, 'Men, do not run over my horse, ' and beckoned to them to stop.Baber, the section-master, and six hands, were on the dump.I hallooed: 'Men, for God's sake, don't run over my horse!'After the dump.ran over the horse, he got up.The dump ran about fifteen yards, and stopped.I heard my brother, ahead of me, hallooing at them.He ran up the railroad, and hallooed: ' Stop! a horse is on the track.'They made no check until they ran over the horse.They were running at high speed.The track was level for a quarter of a mile where the horse was.They could have stopped from where Rufus met them, and could have stopped from where I was, before they got to the horse.They made no attempt to stop.I was traveling a private road that crossed the railroad.This road had been used as a private way ever since I was a boy, thirty years or more before the railroad was ever built, and has been kept up across the railroad since it was built.I could run my hand under the spike.The horse caught his shoe between the spike and the rail.The wheels mashed the bones and cut the leaders.I kept him from November until the next August.I let Clemmer have him, and he died He could not do a day's work after the accident.I did all I could to cure him.He had been a good horse, and I did not want to kill him.John Craig told me to kill him.Craig was a man of large experience with horses.I had the horse in the stable for four months.He was worth at the time of the accident $100.After he got hurt, he was not worth anything, — was a dead expense.I got an old mule for him, and he died.The horse cost me at least $50 in board and attendance.The mule I got for him was worth $5.I did not want to kill my horse, and I got the mule to get clear of the horse.Cross-Examined.Lovell is the first station out from Gastonia.The dump was coming from Lovell, going into Gastonia.It was dusky dark, after sundown.There was no bridge across the road where my horse fell.There was a bridge at a private crossing about sixty-five yards from there, but the railroad had never built a bridge at the place where my horse got hung.The place where I was crossing was a footpath, and there had never been any bridge across the road there.The horse's foot was caught between the spike and the rail.The horse fell over, outside of the track, into the ditch.The horse was not down more than ten or fifteen minutes.The dump ran ten or fifteen steps beyond the horse, and then stopped.All of them got off it and looked at the horse.I tried to work the horse in the summer but his foot was turned up so I could not.Redirect.The road was straight from where Rufus was to the horse.You could see up the road."Here plaintiff rested.

The defendant offered in evidence (1) the date of the summons in this cause, dated 4th August, 1888; (2) thecomplaint, showing the accident in November, 1887.James Baber: "Iwas on the dump-car.We were running fast, twelve or fourteen miles an hour, trying to get into Gastonia before the freight train pulled out from there for Charlotte.It was dark when the horse was struck; was about fifty yards from the crossing..I knew this, because I counted the rails."It was five rails from the crossing, and the rails are thirty feet long.The first man I saw was about that crossing, and he was hallooing, 'Stop!'This was Rufus Lay.I had been hallooed at to stop so much by people who wanted to get a ride that I paid no attention.Tt was down grade from the bridge to the horse.We were running twelve or fourteen miles an hour.Next I saw W. S. Lay, who was hallooing also, and we then put on the brakes.We thought something was the matter when we saw the second man.I was then employed on the road. 1 am not now.I have been off about eighteen months.Cross-Examined.My brother, Jack Baber,...