Long v. Norfolk & W. Ry. Co.

• Decision Date: 08 January 1943
• Docket Number: 741.
• Citation: Long v. Norfolk & W. Ry. Co., 23 S.E.2d 849, 222 N.C. 523 (N.C. 1943)
• Parties: LONG v. NORFOLK & W. RY. CO. et al.
• Court: North Carolina Supreme Court

23 S.E.2d 849

222 N.C. 523

LONG v. NORFOLK & W. RY. CO. et al.

No. 741.

Supreme Court of North Carolina

January 8, 1943

Civil action to recover damages for wrongful death.

Defendant operates a railroad extending in a north-south direction from Roxboro to Durham. Near Duncan's Filling Station, 4 or 5 miles south of Roxboro, there is a county road extending easterly from U.S. Highway # 501, which is west of the railroad, across the railroad to another county road which parallels the railroad on the east. The railroad crossing is just south--less than 120 feet--of a sharp curve in the railroad track, so that at night the engineer or fireman on a train going south cannot see the crossing or any object thereon until the train is within two or three car lengths of the crossing. There are no crossing signs at this crossing.

On 17 September, 1939, at about 4:10 A.M., defendant was operating a double header freight train going south. As it rounded the curve the fireman who was operating the forward engine saw an object near the track about 3 or 4 feet beyond the crossing. The train was then about 2 car lengths from the crossing. When the train was about 1 car length away he discovered that the object was a human being. It was plaintiff's intestate. The body was lying 2 to 4 feet south of the crossing on the outside of and at right angles to the west rail. The head was near the rail and the feet extended toward the ditch. The body was partly concealed from the view of the fireman by the ridge or hump made by the road crossing. No whistle or bell was sounded or other warning given of the approach of the train.

As the train passed some part of the engine struck the head of the deceased, inflicting injuries which caused almost instant death.

The empty Ford automobile of deceased was found some distance away near the intersection of the county road and highway # 501. His auto seat cushion was found nearby on the ground in a clump of trees.

There was evidence that at times deceased had a catch in one of his knees that would cause him to fall and it would be from 30 minutes to an hour or so before he could get up. There was no evidence as to why he was on the track or as to how long he had been there.

The court below, at the conclusion of the evidence for plaintiff and on motion of the defendants, entered judgment as of nonsuit. Plaintiff excepted and appealed.

Graham & Eskridge, of Hillsboro, and K.R. Hoyle, of Sanford, for plaintiff, appellant.

Guthrie & Guthrie, of Durham, for defendants, appellees.

BARNHILL Justice.

The act of the deceased in placing himself in a dangerous position on or near the defendant's railroad track was such an act of negligence on his part as would bar recovery unless the defendant had the last clear chance to avoid the injury. Mercer v. Powell, 218 N.C. 642, 12 S.E.2d 227, and cases cited; Justice v. Southern R. Co., 219 N.C 273, 13 S.E.2d 553. It is on this doctrine of the last clear chance that plaintiff, in part, relies.

Plaintiff offered evidence tending to show that at the time his intestate was struck by the train of defendant he was down on the track in an apparently helpless condition. This is not sufficient. He must further show (1) that the engineer saw, or by the exercise of ordinary care in keeping a proper lookout, could have seen him in time to have stopped the train before striking him; and (2) that the engineer failed to exercise such care, as the proximate result of which the injury occurred. Mercer v. Powell, supra, and cases cited; Justice v. Southern R. Co., supra; and cases cited.

It is not the duty of an engineer to stop his train every time he sees some object on the track. The plaintiff must show that the...