Lloyd v. Albemarle & R. R. Co

• Decision Date: 26 May 1896
• Citation: 24 S.E. 805,118 N.C. 1010
• Court: North Carolina Supreme Court
• Parties: LLOYD. v. ALBEMARLE & R. R. CO.

24 S.E. 805

118 N.C. 1010

LLOYD.

v.ALBEMARLE & R. R. CO.

Supreme Court of North Carolina.

May 26, 1896.

Railroad Company — Accident to Person on Track—Negligence.

1. In an action for the death of plaintiff's intestate, it appeared that, while lying helpless upon defendant's railroad track, at night, he was struck by a train drawn by an engine running tender foremost; that the only light used on the tender was a small hand lantern, held by a man placed there for that purpose, and that the train was running 25 miles an hour. Held, that it was for the jury to determine whether, with a headlight, and by the exercise of due diligence, defendant's engineer could have discovered that plaintiff was lying helpless on the track in time to have stopped the train before it came in contact with him.

2. Though a person is lying helpless on a railroad track, his negligence is not deemed concurrent where, by the exercise of ordinary care, the company's servants could have seen him in time to prevent an injury by the proper use of the appliances at their command.

Appeal from superior court, Edgecombe county; Boy kin, Judge.

Action by Laura Lloyd, administratrix, against the Albemarle & Raleigh Railroad Company for the death of her intestate. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

J. L. Bridgers & Son, for appellant.

Donnel Gilliam and J. H. Blount, for appellee.

AVERY, J. The plaintiff's intestate was killed in the night by an engine running with the tender in front at a speed of about 25 miles an hour, and carrying a train of cars. He was on the end of a trestle when stricken. The only light used on the tender was a small hand lantern, which was held by a man placed on the tender for that purpose. This presents the question so fully discussed in Pickett v. Railroad Co., 117 N. C. 616, 23 S. E. 264, and cases that have followed at this term. Notwithstanding the negligence of the plaintiff's intestate in exposing himself to danger, could the defendant, by subsequently avoiding some careless act or negligent omission of duty have prevented the collision with its serious consequences? The engine could not have been turned around without the use of a turntable, and under the circumstances it is not probable that by keeping the most vigilant outlook, with a small lantern on the tender, the defendant could have seen the intestate in time to stop the train before it came in contact with him, if we suppose that he was lying prostrate upon the track, and apparently helpless. The court carefully instructed the jury that if the engineer or watchman actually saw the intestate walking upon the track, apparently in possession of all of his powers and faculties, either was warranted in acting on the assumption that he would step off before the train reached him, unless he was seen upon a trestle, with all of the peril incident to such a situation. Clark v. Railroad Co., 109 N. C. 430, 14 S. E. 43. We may assume that, acting upon the instruction given, the jury concluded that by the exercise of proper care the defendant's servants might have seen the intestate in time to prevent the collision, and that, if seen, he would have appeared to them to be prone upon the track, or in peril on the trestle. The point involved may be discussed upon the supposition that the jury did not believe from the testimony that the deceased was walking upon the track beyond the trestle when he was seen, or could by a proper outlook have been seen. But it was negligence on the part of the defendant to run its engine, after night, rear in front, without such a light, for two reasons: First, because by its aid the intestate might possibly have been seen...