Lee v. Southern Ry. Co.

• Decision Date: 24 November 1920
• Docket Number: 363.
• Citation: 105 S.E. 15,180 N.C. 413
• Parties: LEE v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

105 S.E. 15

180 N.C. 413

LEE v. SOUTHERN RY. CO.

No. 363.

Supreme Court of North Carolina

November 24, 1920

Appeal from Superior Court, Rockingham County; Ray, Judge.

Action by Raymond Lee against the Southern Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Clark C.J., dissenting.

Since negligence is generally to be determined by all the surrounding circumstances, the practice of making single instances the basis of instructions on negligence is not to be approved, though sometimes permissible.

This is an action to recover damages by the plaintiff for injuries sustained by him in consequence of the alleged negligence of the defendant. The defendant denies negligence and pleads contributory negligence.

In the southern part of the town of Reidsville, the defendant had and maintained, at the date in question, three tracks only a few feet apart, all of which are parallel and run practically north and south. The easternmost track is the main line going north. The one just west of and next to that is the main line going south, and the third one on the west is an industrial or side track. The injury complained of was sustained practically in front of the office of the Edna Cotton Mill. At this point and some distance north and south there is a public highway just west of and adjacent to the roadbed of the defendant, and another public highway just east of and adjacent to defendant's roadbed; both highways paralleling the defendant's tracks. In front of the office of the Edna Cotton Mill, which is on the west side of the defendant's tracks, the defendant's tracks are on an embankment some three feet high; on the east the defendant's road is practically level with the public highway. Some 75 yards north of the place of the collision between defendant's train and plaintiff, a public highway crosses the defendant's tracks, and some 100 yards south of the point of injury there is another highway crossing defendant's tracks. In front of the office of the Edna Cotton Mills, there are wooden steps, leading from the public highway to and upon defendant's roadbed. These steps had been maintained for more than 10 years, and they had been renewed in the meantime one or more times, and over these steps and across defendant's three tracks many persons were accustomed to go every 24 hours, east and west as occasion offered.

On the day in question, to wit, the 11th day of August, 1917, the plaintiff, being on the west side of the defendant's tracks near the point of the injury, had occasion to go across said tracks to a store on the east side. That he approached the defendant's roadbed and tracks at a point some distance north of the steps above referred to. That on the defendant's roadbed or embankment there was a path running north and south. That there was a string of freight cars standing on the side track above referred to, and, in consequence of the presence of these cars, the plaintiff after getting on the embankment of the defendant's roadbed, had to, and did, walk south along the side of these freight cars to or about the steps above referred to, as the presence of these cars, according to plaintiff's evidence, prevented him from crossing at the point where he got on defendant's embankment or roadbed until he passed the end of the box cars, and when he got to the south end of the string of cars, or a few feet north of the steps above referred to, there was a long freight train going north over the easternmost track. That at this point and for some distance in either direction the grade going north was heavy, and, as a result, the engine pulling the freight train going north was exhausting heavily and throwing out great clouds of very dense smoke which settled down between the train going north and the string of box cars above referred to, and over and around where the plaintiff had stopped, at or near the south end of the string of box cars to await the passing of the north-bound freight train. After the caboose of the north-bound freight train had passed, the plaintiff, who had been standing very near the steps for some time, waiting for the said train to pass passed in an easterly direction beyond the end of the string of box cars. That there he looked in both directions, that is to say, south and north, to see if there was any approaching train. That he saw none. That the smoke at this particular time and place surrounding him was quite dense. That he heard no signal, such as the whistle or bell, or other signal of like character, and he was near enough to have heard such had any been given for the approach of a train to the public crossing above referred to as being 75 yards north of where the plaintiff was standing, nor for the approach to the crossing in front of the mills, nor for the approach to the public crossing some 100 yards south of where plaintiff was standing, and seeing no train approaching, and hearing no signal, plaintiff started to cross the tracks of the defendant in an eastern direction, and as he approached the tracks, next to the side or industrial track, the front of the engine of the freight train proceeding from the north struck the plaintiff and seriously injured him, from which he has never recovered. The plaintiff at the time of the injury was some 15 or 16 years of age. Both the plaintiff and the witness Cheshire stated that they heard no signal given, nor did they hear the approach of the train.

There was a space of a little more than 8 feet between the side track and the main line track.

The plaintiff, among other things, testified as follows:

"I had passed over the side track and stepped up on the south-bound track, and that's where it hit me. I couldn't see it for the smoke and dust and the box cars. There was lots of smoke and dust that the train had raised. I could not see the train for these box cars; and, after passing them, I looked to the north and couldn't see the train, and I did not hear it. I waited until the north-bound train had passed before I started to go across, and still the smoke was settled around there so I could not see. If the box cars were taken away, I could not have seen the train; I might have seen it before I got up there. It was the smoke and the box cars, too, that kept me from seeing the train. There was a lot of smoke there, and that kept me from seeing the train when I stepped from behind the box cars. I walked across slow. I looked down the track as soon as I stepped out from behind the box cars. I walked straight across. The train was so close to me it hit me by the time I walked the distance between the side track and the south-bound main line track. I could not see it for the smoke. I had been boarding by the side of the railroad for a week, and freight and passenger trains pass up and down those main line tracks all during the day and night. I never counted them. They pass there often. Yes, sir; I stepped right up there and couldn't see the train for the smoke. I could have heard it if they had rung the bell. I was trusting entirely to hearing the bell. I looked for a train. Sure, I trusted to the whistle. I didn't trust altogether to hearing the whistle. I trusted some to my eyes, but I couldn't see anything. I could not see the engine on the track in front of me for the smoke. I had not started across over there to jump on there and ride that train to the depot. It was a clear day."

His honor, among other things, charged the jury as follows:

"(1) If the jury find as a fact from the evidence that the box cars referred to were from 50 to 70 feet north from the steps, then I charge you that the presence of the box cars is not material upon any aspect of this case; that is, that the presence of the box cars does not tend to show negligence on the part of the defendant, nor is the plaintiff thereby in any degree relieved of the duty to exercise the usual care on account of the presence of the said box cars.

(2) Unless you shall find as a fact from the evidence that the smoke was so thick and heavy that the train that struck the plaintiff could not be seen by him, then I charge you to answer the second issue, 'Yes,' even though you may find as a fact that there was no signal given of the approach of the train.

(3) Unless you find as a fact from the evidence that the box cars were so close to the steps as to interfere with the sight of the approaching train, or that the smoke was so thick and heavy that the train could not be seen by the plaintiff, then I direct you to answer the second issue, 'Yes,' even though there was no signal or warning given of the approach of the train.

(4) It was the duty of the plaintiff to use both his sense of sight and sense of hearing, and the law does not permit him to rely altogether upon the expectation that the train would give a warning of its approach by bell or whistle."

The plaintiff excepted to each instruction.

The jury answered the first issue as to negligence in favor of the plaintiff and the second as to contributory negligence in favor of the defendant.

There was a judgment for the defendant, and the plaintiff appealed.

P. T. Stiers, of Reidsville, and King, Sapp & King, of Greensboro, for appellant.

Manly, Hendren & Womble, of Winston-Salem, for appellee.

ALLEN J.

It is rare that negligence or contributory negligence is dependent on a single fact, and, on the contrary, it is to be determined by a consideration of all the relevant surrounding circumstances.

One fact, separate from others, may have little or no bearing and, by the process of elimination, all ground for the contention that negligence exists on the part of the plaintiff or defendant may be removed, when, if all the circumstances are considered together, the inference of negligence is manifest....