Lutterloh v. Atl. Coast Line R. Co

• Decision Date: 04 October 1916
• Docket Number: (No. 118.)
• Citation: 90 S.E. 8
• Court: North Carolina Supreme Court
• Parties: LUTTERLOH. v. ATLANTIC COAST LINE R. CO.

(172 N.C. 116)

90 S.E. 8

LUTTERLOH.

v.ATLANTIC COAST LINE R. CO.

(No. 118.)

Supreme Court of North Carolina.

Oct. 4, 1916.

Appeal from Superior Court, Lee County; Lyon, Judge.

Action by J. H. Lutterloh, administrator of Percie Ward, deceased, against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Civil action to recover damages for alleged negligent killing of plaintiff's intestate as he was endeavoring to cross the defendant railroad in the town of Sanford, N. C. There was denial of liability and plea of contributory negligence, and, on the trial, the jury rendered the following verdict:

"(1) Is the plaintiff the duly appointed administrator of his alleged intestate? Answer: Yes.

"(2) Did the defendant negligently kill the plaintiff's intestate, as alleged in the complaint? Answer: Yes.

"(3) Did the plaintiff's intestate, by his own negligence, contribute to his death? Answer: No.

"(4) What damage, if any, is the plaintiff entitled) to recover of the defendant? Answer: $1,878."

Judgment on verdict for plaintiff, and defendant appealed, assigning for error chiefly a denial of defendant's motion to nonsuit, and a refusal to charge that, on the testimony, if believed, intestate was guilty of contributory negligence.

Hoyle & Hoyle, of Sanford, and Rose & Rose, of Fayetteville, for appellant.

H. A. London & Son, of Pittsboro, and Williams & Williams, of Sanford, for appellee.

HOKE, J. [1, 2] There were facts in evidence tending to show that, in May, 1914, the intestate of plaintiff was endeavoring to go across the railroad track of defendant company in the town of Sanford when he was run over and killed by some freight cars which had just been detached from the engine in making or flying a switch and were coming down a side track closely behind the engine which was running on the main line; that the occurrence took place in a thickly settled portion of the town of Sanford; that the path crossed the track in a diagonal direction and was and had long been much used by the pedestrians crossing the track in that part of the town and by numbers of employes of a manufacturing plant in that locality near the track; that as intestate was going along this diagonal path towards the main line, the engine and cars came down the track, the engine on the main line at the rate of 20 to 25 miles an hour and making a noise "puffing and blowing" and the cars closely behind, on a side track, at 15 or 20 miles an hour, approaching rather from the side or rear of intestate and, as the latter stepped back to avoid injury from the engine, he was run over and killed, as stated, by the detached cars; that these cars had just been switched off and commenced leaving the main line at the switch of the "warehouse track, " about 170 feet back, and might have been seen by intestate if he had looked at the time in that direction. An ordinance of the town of Sanford was also put in evidence, which prohibited the making of these flying switches within the town, and the evidence on the part of plaintiff tended further to show that there was no one on the detached cars and that no signal whatever was given of their approach until after or just at the time intestate was struck. Upon...