Markham v. Raleigh & G. R. Co

• Decision Date: 27 October 1896
• Citation: Markham v. Raleigh & G. R. Co, 25 S.E. 786, 119 N.C. 715 (N.C. 1896)
• Court: North Carolina Supreme Court
• Parties: MARKHAM. v. RALEIGH & G. R. CO.

25 S.E. 786

119 N.C. 715

MARKHAM.

v.RALEIGH & G. R. CO.

Supreme Court of North Carolina.

Oct. 27, 1896.

Railroad Companies — Injuries to Persons on Track—Sufficiency of Evidence. in an action against a railroad company for the death of plaintiff's intestate, it appeared that deceased was walking beside defendant's railroad, in a footpath at the end of the cross-ties, and that if he had remained in the path the train would not have struck him. There was evidence that deceased, before he died, said he heard a train coming, and ran to get out of the way, and fell, and his arm was caught by the front wheel. His son, who was with him at the time, testified that deceased could have seen the train, had he looked back. Held, that the evidence did not justify a verdict for plaintiff.

Appeal from superior court, Wake county; Mclver, Judge.

Action by J. C. Markham, administrator of the estate of Perry, deceased, against the Raleigh & Gaston Railroad Company for the death of plaintiff's intestate, caused by defendant's negligence. From a judgment ofcompulsory nonsuit, plaintiff appeals. Affirmed.

A son of the intestate testified that he was with him, going towards home from Wake Forest. "We were walking on the path beside the railroad. I passed him, and went over past the crossing. Heard the train blow, and looked back, and saw him down by the side of the road, at the end of the cross-ties, twenty-five or thirty feet from the crossing. The engine blew after it passed me, twenty-five or thirty yards from the crossing. I heard no other blow or signal. I joined my father at Forestville. He was fifty years old, strong and healthy. He was a farmer. I worked with him. He made $400 or $500 per year. He had been drinking, but was not a drunken man. He had a pint of whisky, and four men drank out of it. There was something like a gill left." Cross-examination: "The road crossing was about 150 yards from the depot. I suppose the train was at the depot when we passed along the dirt road. I could have seen it if I had looked. That year my father was not farming. He was hiring himself out." Dr. J. B. Powers, a witness for the defendant: "I was at Wake Forest that day and was called to see intestate, and reached him in ten or thirteen minutes after the injury. He said he was running up the path, stumped his toe, and fell; that the engine did not touch him, but front wheel ran over his arm. He died from the injury. I smelt whisky, but did not see any." Cross-examination: "He was rational. He said he heard the train coming, and ran to get out of the way, and...