Faircloth
C.J., and Montgomery, J., dissenting.
Appeal
from superior court, Wake county; Adams, Judge.
Action
by W. J. McLamb, administrator of the estate of J. R. McLamb
deceased, against the Willmington & Weldon Railroad Company.
Judgment for plaintiff, and defendant appeals. Affirmed.
Aycock & Daniels and W. C. Munroe, for appellant.
J. H
Pou, for appellee.
DOUGLAS
J.
This
was an action brought by the administrator of J. R. McLamb to
recover damages for the killing of his interstate by the
alleged negligence of the defendant. The deceased was on a
trestle about 30 feet high, belonging to the defendant
company, and was struck by the defendant's train, knocked
from the trestle, and killed. It appears from the testimony
of the engineer that the train was 25 or 30 minutes late, and
was running at the rate of 50 or 60 miles an hour, and could
not be stopped in less than 450 or 500 yards; that when
three-quarters of a mile south of the trestle he saw two men
on the track; that he could not locate them until he got
within half a mile, when he saw they were on the trestle;
that he blew the whistle at the crossing, about half a mile
from the trestle, when one of the men got of the trestle
entirely, while the other, the deceased, stepped off the
track onto a narrow platform on the side of the trestle, and
then stepped back, and began to run across the track; that he
was then 200 or 250 yards south of the trestle, when he blew
the danger signal, put on the emergency brakes, sanded the
track, and did everything he could to stop the train; that up
to that time he had done nothing to stop the train or reduce
its speed, because he thought the deceased was in a safe
place on the platform, where he had often passed trestle
hands at full speed; that the trestle is a little over 400
feet, long, and the platform, situated about midway of the
trestle, is 140 feet long and 5 feet 5 inches wide from the T
iron to the railing; that the engine and care project nearly
2 feet beyond the rail, leaving a clear space on the platform
of about 3 1/2 feet, where a person could stand with perfect
safety. This is of course the evidence most favorable to the
defendant, and is in the main sustained by other testimony;
but there is strong conflicting evidence tending to show that
the platform was not a safe place from a passing train, and
that the engineer did not blow at the crossing, where it was
the custom to blow. There was also testimony going to show
that the trestle was much used as a passageway by other than
railroad employés.
The
issues submitted and the answers thereto, the prayers of the
defendant, and the charge of the court, as they appear in the
record, are as follows:
"(1)
Was J. R. McLamb killed by the defendant's train? A.
Yes. (2) Was he killed by the negligence of the defendant?
A. Yes. (3) Did J. R. McLamb, by his own negligence,
contribute to his injury? A. Yes. (4) Notwithstanding the
negligence of J. R. McLamb, could the defendant's
engineer, by the exercise of ordinary care, have prevented
the injury? A. Yes. (5) What damage, if any, has the
plaintiff sustained? A. $2,000."
Before
the close of the evidence the defendant requested the court
to reduce its charge to writing, and read the same to the
jury, which was done. Before the close of the evidence the
defendant requested the court to give the following special
instructions:
"(a)
It is not the duty of the defendant; through its engineer,
to lessen the speed of the train as it approached the
trestle, until he had reasonable grounds to believe that
the plaintiff's intestate was not capable of caring for
himself. (This special instruction is included in the
charge of the court as read to the jury.)
"(b)
The engineer had a right to assume that any one who had
entered upon the trestle was capable of caring for himself,
under all circumstances of this case, until such time as
the person on the trestle exhibited signs of terror; and if
the jury shall believe that, as soon as the engineer
discovered that the interstate of the plaintiff was
frightened, the engineer did all in his power to stop the
train, the defendant was not guilty of negligence, and the
jury will so find. (This special instruction is included in
the charge of the court as read to the jury.)
"(c)
If the jury believe that the engineer was a competent man,
and was ordinarily and reasonably observant of his duties,
and was honestly mistaken in his judgment, and that the
accident resulted from a mistake of judgment and not from
negligence, then the jury will find that the defendant was
not guilty of negligence. (This special instruction is
included in the charge of the court as read to the jury.)
"(d)
A mistake of judgment is not negligence. Ordinary and
reasonable care is all that is required of an engineer.
(This special instruction was included in the charge of the
court as read to the jury.)
"(1)
That upon the whole evidence the plaintiff's intestate
was guilty of contributory negligence. (This instruction was
not given, for the reason that the third issue, as to the
negligence of the deceased, was, by consent of plaintiff,
answered in the affirmative before the charge of the court
was read.)
"(2)
That the defendant, upon the whole evidence, is not guilty of
negligence. (This was refused, and defendant excepted.)"
"(4)
That, by plaintiff's own evidence, a witness who was well
acquainted with the intestate, and in full view of him,
within a distance short of that within which the train could
have been stopped, mistook the intestate for an employé of
the railroad; and it could not be negligence on the part of
the defendant to make the same mistake the plaintiff's
own witness made. (This was refused, except in so far as it
may be covered by the charge as read.)
"[(5) That, if the jury shall believe that the engineer
mistook the intestate for an employé of the road until it was
too late to avoid the accident, then the defendant is not
guilty of negligence.] (This was refused, except in so far as
it may be covered by the charge as read.)
"[(6)
That if the jury shall believe that the defendant had posted
notices at each end of the trestle to the effect,
'Danger! This bridge is not thoroughfare; keep
off,'--then it was not negligence on the part of the
defendant for its engineer to assume that any person on the
bridge was an employé of the defendant and would put himself
in a place of safety.] (This was refused, except in so far as
it may be covered by the charge as read to the jury.)
"[(7)
That if the jury shall believe that there was a platform on
each side of the trestle extending five feet and five inches
wide from rail to edge of platform, this was a place of
safety, and the engineer had a right to expect the intestate,
McLamb, to get upon said platform, and it was not the duty of
the engineer to stop his train, or endeavor to do so, until
he discovered that the intestate had become
'rattled'] (This was refused, except as covered by
the charge as read to the jury.)
"(8)
It was the duty of the plaintiff's intestate not to go on
the trestle, and especially without stopping to look back and
ascertain whether a train was approaching or not, and in so
going on said trestle he was guilty of contributory
negligence. (This special instruction was not given, for the
reason that, previous to the time when the same was asked to
be given, counsel for the plaintiff had agreed that the issue
as to the negligence of the intestate of the plaintiff should
be answered in the affirmative.)
"(9)
That the measure of damages, if the jury find for the
plaintiff, is the present value of the gross income of the
plaintiff's intestate from his personal services, less
the cost of living and his expenditures. This is his net
income, and these damages could not exceed the present value
of the net accumulations to the estate of the plaintiff,
based upon the expectancy of life. (This special instruction
was substantially included in the charge as given.)
"(10)
The damages cannot exceed a sum which, put at interest until
the natural death of the intestate, would equal what he would
have saved had he not been killed. (This special instruction
was not given as requested. The same was refused, except in
so far as it is covered by the charge as read. Defendant
excepts.)"
It was
admitted in the argument on both sides that only the net
earnings from the labor and personal services of the deceased
could be considered by the jury in estimating the damages, in
case any damages should be awarded, and that the income from
any property of the defendant should not be considered. To
the refusal of the court to give such of the above special
instructions as were refused, the defendant excepted.
The
court gave the jury the following instructions in writing:
"(1)
It is the duty of the plaintiff to satisfy the jury, by a
preponderance of the evidence, that the deceased was killed
by the train of the defendant, or was knocked from the track
by the train and was killed by the fall. If the plaintiff has
so satisfied your minds, then you should answer the first
issue, 'Yes.' If he has failed to satisfy your minds
that the deceased was killed as above stated, then you need
not consider the other issues at all; for, if the train did
not cause the death of McLamb, the defendant would not be
liable in damages, and you should answer, 'No.'
"(2)
If you should find that the train did cause the death of Mr
McLamb, as alleged by the plaintiff, then you will proceed to
consider the other issues. It is agreed that you may answer
the third issue in the affirmative, so you need not consider
that issue at all.
"(3)
As to the second and...
