McMillan v. Atlanta & C. Air Line Ry. Co.

• Decision Date: 29 November 1916
• Docket Number: 447.
• Parties: MCMILLAN v. ATLANTA & C. AIR LINE RY. CO.
• Court: North Carolina Supreme Court

90 S.E. 683

172 N.C. 853

MCMILLAN v. ATLANTA & C. AIR LINE RY. CO.

No. 447.

Supreme Court of North Carolina

November 29, 1916

Appeal from Superior Court, Gaston County; Carter, Judge.

Action by A. N. McMillan, administrator, against the Atlanta & Charlotte Air Line Railway Company. Judgment for defendant and plaintiff appeals. No error.

A party desiring that the court submit to the jury any special theory of the case, supported by the evidence, should ask for an appropriate instruction.

The instructions were, in part, as follows:

"If a human being is upon or near a railroad track and apparently in possession of his senses, the engineer is justified in assuming up to the last minute that such person will exercise his faculties and senses for his own safety and get out of the way, and the engineer is not required to stop his train or slacken the speed."

"It is a well-settled rule that, where railroad employés in charge of a train see a person on or near the tracks in advance of the train, unless they know or can see from his condition or surrounding circumstances that he will not or cannot retire to a place of safety in time to prevent an accident, they have a right to presume that such person is of sound mind and good hearing and eyesight, and that he will retire to or stop in a place of safety in time to prevent injury from an approaching train of which he has knowledge or of which he, by the exercise of due care or the use of his senses, should have knowledge."

"If the servants and agents of a railroad company see a person approaching the tracks in an automobile, they have the right to assume up to the last minute that such person will stop the automobile in time to avoid a collision, and the engineer is not bound to stop the train or slacken its speed, unless he can or does see that such person in the automobile is of unsound mind or not in possession of his senses or cannot stop his automobile."

"As a general rule of evidence, affirmative testimony is regarded as stronger than negative; in other words, the rule is that the testimony of a creditable witness that he saw or heard a particular thing at a particular time and place is regarded as more reliable than that of any equally creditable witness with the same opportunity who testified that he did not hear or see the same thing at the same time and place. The reason for this rule is that the witness who testifies to a negative may have forgotten what actually occurred, while it is impossible to remember what never existed."

Plaintiff alleged that his intestate, J. W. Stout, was killed by a collision between an automobile, driven by another, in which he was riding, and a train of defendant at a crossing in East King's Mountain on August 17, 1914, and that his death was caused by defendant's negligence. The jury returned the following verdict:

"(1) Was the plaintiff's intestate killed by the negligence of the servants and agents of the Southern Railway Company, as alleged in the complaint? Answer: No.

(2) What damage, if any, is plaintiff entitled to recover? No answer."

Judgment thereon, and plaintiff appealed.

Mangum & Woltz and N. F. McMillan, all of Gastonia, for appellant.

O. F. Mason and Geo. B. Mason, both of Gastonia, and F. M. Shannonhouse and W. S. Bean, both of Charlotte, for appellee.

PER CURIAM.

There was no issue as to contributory negligence, and there was no such question in the case as it was not tried upon that theory, but rather upon the question of proximate cause. We have examined the charge carefully, and find it to be an accurate statement of the law as applicable to the facts, and it was in exact accordance with the principles as laid down by this court in Crampton v. Ivie Bros., 126 N.C 894, 36 S.E. 351, and Bagwell v. Railroad Co., 167 N.C. 611, 83 S.E. 814. See, also, 2 Ruling Case Law, p. 1205. The questions were as to who was negligent and as to whose negligence was the proximate cause of the intestate's death, unaffected by any contributory negligence on his part. This controversy was submitted to the jury clearly and explicitly, with a fair and impartial statement of the several contentions and a correct application of the law to the facts as the jury might find them to be, following closely the above-cited cases.

The court instructed the jury that:

"There is no question of contributory negligence in the case, since the law does not impute the negligence of the driver of the automobile to plaintiff's intestate."

The rules in regard to positive and negative testimony ( State v. Murray, 139 N.C. 540, 51 S.E. 775; Rosser v. Bynum, 168 N.C. 340, 84 S.E. 393) and the duty of the engineer to persons on or near the track of a railroad were properly stated by the court and with apt illustration (Syme v. Railroad Co., 113 N.C. 558, 18 S.E. 114; Treadwell v. Railroad Co., 169 N.C. 694, 86 S.E. 617; 33 Cyc. 800).

If the contentions of the respective parties were incorrectly given, it was required of plaintiff that the judge's attention should have been called to the error in due time, so that he might correct it. Nevins v. Hughes, 168 N.C. 477, 84 S.E. 769. If the defendant desired that the court submit to the jury any special theory of the case, which was supported by evidence, he should have asked for an appropriate instruction. Penn v. Insurance Co., 160 N.C. 399, 76 S.E. 262, 42 L. R. A. (N. S.) 597. But the contentions of the parties were fully and fairly stated to the jury, with proper discrimination as to their bearing upon the issues, and plaintiff has no cause to complain on this score.

There are some questions of evidence, but none of them, had there been any error, is of importance enough to warrant a reversal. The judge was correct in all these rulings. As to some of the questions excluded there was no sufficient indication of what the witness would have answered, and others had no substantial relevancy to the case. The evidence admitted on plaintiff's objections was clearly competent. The requests for instructions as to contributory negligence were given in the charge to the extent that plaintiff was entitled to them.

The negligence of the driver was permitted to be considered by the jury only upon the question of proximate cause, and this view is sustained by Crampton v. Ivie Bros., supra, and Bagwell v. Railroad Co., supra.

The subsequent changes in signals or warnings for additional safety were properly excluded under the circumstances as proof of negligence. Precautions against the future cannot be considered as an admission of actionable negligence in the past. Columbia & P. S. Railroad Co. v. Hawthorne, 144 U.S. 202, 12 S.Ct. 591, 36 L.Ed. 405. The court said in that case:

"A person may have exercised all the care which the law required, and yet, in the light of his new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards. The more careful a person is, the more regard he has for the lives of others, the more likely he would be to do so, and it would seem unjust that he could not do so without being liable to have such acts construed as an admission of prior negligence. We think such a rule puts an unfair interpretation upon human conduct, and virtually holds out an inducement for continued negligence." Morse v. Minn. & St. L. Ry. Co., 30 Minn. 465, 468, 16 N.W. 358.

The same rule appears to be well settled in England. In a case in which it was affirmed by the Court of Exchequer Baron Bramwell said:

"People do not furnish evidence against themselves simply by adopting a new plan in order to prevent the recurrence of an accident. I think that a proposition to the contrary would be barbarous. It would be, as I have often had occasion to tell juries, to hold that, because the world gets wiser as it gets older, therefore it was foolish before." Hart v. Lancashire & Yorkshire Railway, 21 Law Times (N. S.) 261, 263.

The court also said in that case (Railroad v. Hawthorne, supra):

"Upon this question there has been some difference of opinion in the courts of the several states. But it is now settled, upon much consideration, by the decisions of the highest courts of most of the states in which the question has arisen, that the evidence is incompetent, because the taking of such precautions against the future is not to be construed as an admission of responsibility for the past, has no legitimate tendency to prove that the defendant had been negligent before the accident happened, and is calculated to distract the minds of the jury from the real issue, and to create a prejudice against the defendant"--citing many cases, and among others Morse v. Minn. & St. L. Railway Co., 30 Minn. 465, 16 N.W. 358; Corcoran v. Peekskill, 108 N.Y. 151, 15 N.E. 309; T. H. & Ind. Railroad v. Clem, 123 Ind. 15, 22 N.E. 965, 7 L. R. A. 588, 18 Am. St. Rep. 303.

Part of the above quotation was taken from the opinion of that learned and able jurist Judge Mitchell, delivered by him in Morse v. Railroad Co., supra. We adopted the same rule in Lowe v. Elliott, 109 N.C. 581, 14 S.E. 51, and approved what is above quoted from opinion of Mitchell, J in Morse v. Railroad Co., citing three other cases, Dougan v. Transportation Co., 56 N.Y. 1, Sewell v. Cohoes, 11 Hun (N. Y.) 626, and Baird v. Daly, 68 N.Y. 547. The case of Lowe v. Elliott was approved in Myers v. Lumber Co., 129 N.C. 252, 39 S.E. 960; Aiken v. Manufacturing Co., 146 N.C. 324, 59 S.E. 696; Tise v. Thomasville, 151 N.C. 281, 65 S.E. 1007; Boggs v. Mining Co., 162 N.C. 393, 78 S.E. 274. We do not say that there may not be peculiar cases in which such testimony may be relevant, but this is not one of them. Lowe v. Elliott, supra. We have admitted such evidence under special...