McAdoo v. Richmond & D.R. Co.

Decision Date17 March 1890
Citation11 S.E. 316,105 N.C. 140
PartiesMcADOO v. RICHMOND & D. R. CO.
CourtNorth Carolina Supreme Court

This was a civil action, tried at the February term, 1889, of the superior court of Guilford county, before BYNUM, J.

The second paragraph of the complaint was as follows: "That on the said 17th day of February, 1886, the plaintiff, coming from his usual place of business, was walking upon the track of the defendant's North Carolina Division, as he has been in the habit of doing for several years without objection from the defendant, within the corporate limits of the city of Greensborough, where, owing to the gross negligence of the defendant's servants, he was struck from behind by a locomotive engine belonging to the defendant and operated by its agent, and was violently thrown from the track; that he was thereby much injured, and suffered great physical and mental pain, by having his leg badly strained and bruised, whereby he was temporarily disabled from carrying on his former business as a watchman and laborer and still suffers great pain and inconvenience." This was denied by defendant. The issues submitted, with the responses of the jury, were as follows: "Was the plaintiff injured by the negligence of the defendant, as alleged? Answer. Yes. Did the plaintiff contribute to his injury by his own negligence? A. Yes. What damage is the plaintiff entitled to recover? No answer." The words "as alleged," in the first issue, were inserted by the court on motion of the defendant.

Plaintiff testified that on Wednesday of February court, 1886, he was watchman at Seargeant's foundry, and was coming up the track of the railroad, about 8 o'clock A. M., when he was struck from behind by an engine, and knocked off the track. He was struck on calf of leg; skin slightly broken; sole of shoe torn off, and ankle and back strained. Was unable to work five or six days. His ankle hurt him for nearly a year but does not feel it now. Back sometimes troubled him before the accident, but has been worse since. Lost five or six days, at one dollar per day, and spent one dollar for medicine. The morning was clear. He was in good health, and walking four or five miles an hour. Had been using the track as a pass way for 11 years without objection from any one. It was so used by large numbers of people. The engine had no cars attached, and passed him about as far as half-way across court-room, (about 20 feet.) He did not hear either bell or whistle. Was watching the Salem train, which was switching near him. Foundry is about a quarter of a mile from depot. Witness had walked about half way when struck. Had passed the engine, with freight train on side track, after leaving foundry. Engine came off side track on main line, and struck him from behind. Cross-examined: He was as well as usual that morning; sober; eye-sight good; hearing good. Had no disability, and could have gotten off the road. Stopped a minute to talk with his daughter and another woman on track but did not step off. They were coming from depot. He did not turn round, and did not see or hear the engine. If train was on the track, he could have seen it; walked the track half-way from foundry to depot. Salem train was on side track. Was looking at it, but had no business with it. Engine was on side track when it struck him, east of Davie street. North Carolina Railroad track and Cape Fear & Yadkin Valley track are 10 or 12 feet apart. Did not hear the bell ringing but did not swear the bell was not ringing. Murphy was engineer. Sprinkles was first man who came to him. Does not think he walked between the tracks, but on main track because it is a better walk. Had no idea engine was behind him. Sprinkle, a witness for plaintiff, testified he was helping to shift Salem train. Heard some one cry out. Turned round and saw plaintiff lying on the ground two or three feet from track. Was within 20 feet to where plaintiff was struck. Saw engine coming, and it ran onto the main line. "Think it was running four or five miles an hour. At that time, Salem train was shifting. Heard engine that struck plaintiff coming. Don't recollect whether bell was ringing. Have been on railroad eight years. Engine passed plaintiff ten or twelve feet. Saw it come to 'cross-over' track; thence back to main track, and up main track towards the turn-table." Plaintiff then introduced city ordinances. It was admitted that ordinance forbade trains running over four miles an hour within certain limits, and that plaintiff was struck by engine within those limits, and that plaintiff was not a trespasser.

Testimony for defense: Murphy testified he was an engineer on Richmond & Danville road, and was, when plaintiff was injured, running the engine which hurt him. Came in on North Carolina Railroad track, and ran on foundry track. Left train on foundry track, and backed the engine on "cross-over track" to main line, and down main line to switch leading to turn-table. First saw plaintiff when pulling in on foundry track. He was on main line. Next time witness saw him, he was walking on Cape Fear and Yadkin Valley Railroad track, and the next time 8 or 10 feet in rear of tender on said track. Did not see him on the track before he was struck. Witness' seat is on right side of engine. Wiley Holt was on left side. A man on left side of track cannot be seen by engineer in less than 10 to 13 yards. Holt was ringing the bell, sitting in fireman's seat, and told witness: "You have knocked a man off." This was the first that witness knew of plaintiff being there. Witness looked back, went 8 or 10 feet and stopped, reversing the engine. Was using no steam at the time. "Have been an engineer thirty years." It was admitted that witness was an expert. Defendant's counsel asked witness: "If engine had been rolling down the track over four miles an hour, could you not have stopped in the time you did actually stop?" Question objected to upon the ground that the negligence of the witness was the alleged cause of the accident, and the character of the question was calculated to indicate the answer desired. Objection overruled, and exception noted. The witness answered: "No. If it had been going over that speed, it could not have been stopped in that distance." Witness stated that at the time plaintiff was struck the engine was not running over four miles an hour. Cross-examination. "If going five miles an hour, could stop in fifteen or twenty yards." Witness stopped in ten yeards. Ran about length of engine and tender. Did not and could not see plaintiff, who was on left side. When witness first saw him, he was walking four or five miles an hour. Did not see him when he stopped on North Carolina track. If witness had been notified in time, engine could have been stopped before striking plaintiff, who crossed foundry track and got on main line ahead of engine. Wiley Holt, for defendant, testified that he was sitting on south side of engine when plaintiff was struck. As engine came on main line plaintiff was standing "facing us, talking to two women who had their backs to us." Engine started on main line for depot. Plaintiff was walking between main line and Cape Fear track just before he was struck. He started across main line in front of engine, and was struck and knocked off. Witness was ringing the bell at the time. Cross-examination: Witness did not tell plaintiff he saw him on the track, and thought he was going to step off. Plaintiff is unfriendly to witness, and does not speak to him. Plaintiff stepped on track about 10 or 12 feet, as if he was going to cross. Did not notify engineer. Plaintiff could have jumped across before engine got to him. Murphy was re-examined by defendant, and stated that the character of Holt was good, except as to fighting. There was other evidence to the same effect. The plaintiff was re-examined, and stated that he had a conversation with Holt just after the accident, and he said: "I saw you on track, and thought you stepped off. Murphy did not see you." Plaintiff states he never got off main track until he was knocked off, and does not think the engineer saw him.

Plaintiff introduced a plat of tracks alluded to, and requested the court to charge: (1) Walking upon the track by a trespasser does not per se constitute such contributory negligence as will bar a recovery for injuries sustained from the negligence of the servants of a railroad; and such trespasser may recover, if he did nothing else to contribute to the injury. Refused. (2) Acts, to constitute contributory negligence, must be the proximate and not the remote cause of the injury, and such acts as directly produce, or concurred in directly producing, the injury. Given. (3) It is required by a railroad company to exercise more care than otherwise necessary, in running its trains in a populous town. Refused. (4) Where the public, for a long series of years, has been in the habit of using a portion of the track for a crossing or passway, the acquiescence of the company will amount to a license, and impose on it the duty of reasonable care in the operation of its trains, so as to protect persons using the license from injury. Refused. (5) Although the person upon whom the injuries were inflicted contributed thereto by his negligence, if the defendant might have avoided them by ordinary care, and did not, damages may be recovered. Refused.

The court further charged: "As to the first issue, if the accident was caused by negligence of defendant, the jury should answer, 'Yes;' otherwise, 'No.' The burden is on plaintiff to show negligence. If the engine was moving four miles an hour, defendant not being at a crossing it was not negligence not to ring the bell, unless the failure to ring the bell is shown to have contributed to the injury. If you find from the...

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