Manly v. The Wilmington & Weldon R.R. Co.

• Citation: 74 N.C. 655
• Court: North Carolina Supreme Court
• Decision Date: 31 January 1876
• Parties: JAMES MANLY v. THE WILMINGTON & WELDON RAILROAD COMPANY.

74 N.C. 655

JAMES MANLY

v.THE WILMINGTON & WELDON RAILROAD COMPANY.

Supreme Court of North Carolina.

January Term, 1876.

The general rule as to contributory negligence is, that when the injury arises neither from malice, design, nor wanton and gross neglect, but simply the neglect of ordinary care, and the parties are mutually in fault, the negligence of both being the immediate and proximate cause of the injury, a recovery is denied, upon the ground that the injured party must be taken to have brought the injury upon himself.

This general rule however, is subject to certain qualifications. For instance:

(1.) The injured party, although in fault to some extent, at the same time may be entitled to damages for an injury which could not have been avoided by ordinary care on his part.

(2.) When the negligence of the defendant is the proximate cause of the injury, but that of the plaintiff only remote, consisting of some act or omission not occurring at the time of the injury; in such cases an action for damages may be maintained.

( Herring v. Wilmington & Raleigh Railroad Company, 10 Ired. 402; Morrison v. Cornelius, 64 N. C. Rep. 346, and Murphy v. Wilmington & Weldon Railroad Company, 70 N. C. Rep. 437, cited and approved.)

CIVIL ACTION, for damages, tried before Moore, J., at December (Special) Term, 1875, of HALIFAX Superior Court.

The following are the facts agreed, and sent to this court as a part of the record, upon appeal.

On the -- day of June, 1875, the defendant's regular train being somewhat behind time, was at about half-past three o'clock, P. M., running over the defendant's railroad at the speed of twenty-five miles per hour, the schedule speed being fixed at twenty-two and one-half miles per hour, according to circumstances, and the usual speed being twenty-two and one-half miles per hour.

As the train was approaching its terminus, at Weldon, at a point about one mile south of that town, where there is a down grade, and where the track is straight for nearly two miles, it ran over and killed a colored girl, the child of the plaintiff, then about ten years old, who, together with her sister, some fifteen years old, was on the track asleep.

This action is instituted by the plaintiff to recover of the defendant damages for the killing.

On the trial the plaintiff introduced the eldest sister as a witness, who stated, that she and her youngest sister had gone to a neighbor's house in order to get clothes to be washed. The evening was very hot, and when they reached the railroad on their return, being wearied with the burden, both sat down on the track to rest, and the oldest sister to pull off her shoes, which hurt her feet. They soon fell asleep. She was soon aroused by the blowing of the whistle of the engine, and, springing up, jumped from the track.

The engineer who was in charge of the train at the time of the accident, stated: That the day was very hot, the sun shining very brightly upon the track, and his vision was impaired by the glimmer of the track. He did not discover any object upon the track until within two hundred feet of the girls. At first he supposed the objects were small hogs, and blew his whistle. That so soon as he discovered the objects to be human beings, he reversed his engine, threw the whole force of the steam upon the wheels and blew the whistle rapidly, but could not stop the engine until it had run over one of the girls, and passed about one hundred yards beyond. That when he first blew the whistle, one of the girls sprang up, endeavored to drag the other off, but was unable to do so, and escaped from the track.

He further stated that on such a grade and at the speed of twenty-five miles an hour, the engine could not have been stopped under two hundred and fifty yards, but at the speed of twenty-two and a half miles it might have been stopped at about two hundred yards.

The engineer was proved to be ordinarily skillful.

The conductor testified that the brakes were applied so soon as the whistle blew. He saw the brake applied at the end of the car where he then was.

The witnesses differed as to the distance at which the girls might have been seen by the engineer, he looking out for them, some stating it to be a half a mile, and others four hundred feet. There was also a conflict of evidence as to the distance from the girls when the whistle was blown.

The following are the issues which were submitted to the jury, and the several responses thereto:

1. How far could objects of the description shown in the evidence, be seen by an engineer at the time the child was killed?

Answer: Two hundred yards.

2. How far was the train from the children when the whistle was blown?

Answer: One hundred and fifty yards.

3. What damage did the plaintiff sustain by reason of the killing of the child?

Answer: Three hundred dollars.

The defendant requested his Honor to submit the following issue to the jury: “Could the child have escaped from the track after the whistle blew, had she been awake?”

His Honor remarked that this was admitted, and did not submit the issue.

It is admitted that the people are in the habit of walking on the track going to and from Weldon, and that this was known to the engineer.

Upon the evidence and the finding of the jury, the court ruled that there was negligence on the part of the defendant; and rendered judgment for the plaintiff for three hundred dollars.

From this judgment the defendant appealed.

Moore & Gatling, for the appellant .

Day and Batchelor & Son, contra .

BYNUM, J.

When the facts are found or admitted, what is negligence, is well settled in this State, to be a question of law for the court, whatever diversities of decision may prevail in some of the other States. The facts here are fully set forth in the case stated, and they are so strikingly like those in the case of ??erring v. Wil. & Ral. R. R. Co., 10 Ired. 402, that it is sufficient to refer to that case, for a full discussion of the principles involved in this. The doctrine of contributory negligence, as affecting the right of the plaintiff to recover, as understood and enforced by the law of this State, is further well illustrated in the cases of Morrison v. Cornelius, 63 N. C. Rep., 346, and Murphy v. Wil. & Weld. R. R. Co., 70 N. C. Rep., 437.

In looking abroad at the decisions of our sister States, it is impossible to find any principle in them, by which this action can be maintained. Take, for instance, a case from Massachusetts, where one extreme of the doctrine of contributory negligence is held; and another from Illinois, where the other extreme is held. In Murphy v. Deane, 101 Mass., 455, it is decided, that whenever there is negligence on the part of the plaintiff, contributing directly, or as a proximate cause to the occurrence from which the injury arises, such negligence will prevent the plaintiff from recovery; and the burden is always upon the plaintiff to establish, either that he himself was in the exercise of due care, or that the injury was in no degree attributable to want of proper care on his part. It is not necessary to give an unqualified assent to this decision, as it seems to leave out of view all gross and wanton negligence on the part of the defendant, which would be evidence of willful injury, and enable the plaintiff to maintain the action, although in fault himself. It is not alleged that the negligence of the defendant, in our...