McNeill v. Atlantic Coast Line R. Co.

• Decision Date: 02 December 1914
• Docket Number: 284.
• Parties: MCNEILL v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

83 S.E. 704

167 N.C. 390

MCNEILL v. ATLANTIC COAST LINE R. CO.

No. 284.

Supreme Court of North Carolina

December 2, 1914

Appeal from Superior Court, Cumberland County; Rountree, Judge.

Action by David McNeill, administrator of S. A. McAllister deceased, against the Atlantic Coast Line Railroad Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Clark C.J., dissenting.

A part of an instruction, in an action against a railroad company for the death of a person struck by a train, held not objectionable as an argument in favor of the company, when considered in connection with the remainder of the instruction.

The first issue was: "Was the death of the plaintiff's intestate caused by the negligence of the defendant?"

This is an action instituted by the plaintiff, administrator of D. A McAllister, for the wrongful death of his intestate, alleged to have been caused by the negligence of the defendant. The allegations of negligence in the complaint are as follows:

"That on the night of the 29th of December, 1912, the plaintiff's intestate, while walking near the track, or attempting to cross the track of the defendant's company, and dressed only in his underclothes, was struck by a locomotive of the defendant company, near the signal station at Beard, N. C., which locomotive was drawing a freight train, and which, at the time of the accident above referred to, was being run and operated without the use of headlights of any description, and at the time herein referred to was giving no signal bells, whistling or otherwise, in consequence of which acts on the part of the defendant company the plaintiff's intestate was struck, wounded, and bruised, from the effects of which he died on the ______ day of January, 1913. That the injuries above referred to, and the death of plaintiff's intestate resulting therefrom, were caused by the negligence of the defendant company and its agents and employés."

It appears from the evidence that at about 2 o'clock a. m., on the 29th of December, 1912, D. A. McAllister was found on the right-hand side of the track of the defendant, between Wade and Beard, N. C., Stations about five miles apart, and at a point about 150 yards from Beard Station. The deceased was lying on the ground, with his head on a cross-tie, and had a large hole in his left side, caused by an injury from which he afterwards died. The deceased was drinking, and dressed in his nightclothes. It was in evidence that the right of way of the defendant company between these two stations had been used as a path for pedestrians for 25 or 30 years. It also appears from the evidence that an extra freight train passed Wade Station a short time before the deceased was found, which was running without a headlight, and that the only lights theron were two small lights, one on each side, used as classification signals to indicate that the train was an extra. The witnesses McNeill and Gibson stated that this train, going southwardly, passed them as they were walking in the same direction toward Beard Station, searching for deceased; that before they reached the deceased, and while some distance from Beard, they saw a bright headlight of a train coming towards them in a northwardly direction, that they could see all the way to Beard Station, and that there was no man or any other object upon the track. It is admitted that the two trains passed at a point south of Beard Station, and that the track between Wade and Beard is straight all the way. It was contended by the plaintiff that the deceased was killed by the train, which had no headlight. It was contended by the defendant that if the deceased was killed by any train, it was the train going north, which had a headlight, or that if killed by the train running without a headlight, the deceased was not struck by the engine, but by some other part of the train. The defendant offered evidence tending to prove that the engine of the freight train was equipped with an electric headlight when it left Rocky Mount; that the light went out at Dunn because the wire that clutches the carbon burned in two, and that the engineer tried to repair it and could not do so. His honor charged the jury, among other things, as follows:

"It is my business to assist you in arriving at a correct answer to the questions, which will be given you in the form of issues, by calling your attention, coolly and dispassionately, to what the contentions of the parties are, and what the evidence is sustaining those contentions, and what the law is which you must apply to the facts which have been testified to, in order to enable you to answer those issues. You are not to decide this case from any sympathy or consideration for the deceased man, or any admiration for his good qualities or detestation for his bad qualities, if he should have any. You are not to decide the case for or against the defendant because it is a railroad. Railroads are extremely useful things, and if property is taken, by way of a jury's verdict, from a railroad when the evidence and law does not justify it, it is robbery, nothing less than robbery, and if that sort of thing prevails to any very large extent the railroads are crippled. You can easily see that every industry, the people from whom they buy, the lumber men and the steel men, are crippled, and those in turn from whom they buy are crippled, and we have a serious catastrophe, but not to award a verdict in accordance with the law and testimony in behalf of the plaintiff would be equal robbery. So as honest men and good jurors it is your business, without regard to any moving appeals or any power of oratory, coolly and quietly, without sympathy and without prejudice and without passion, but to dispassionately try to pass on the evidence and reconcile it and answer the questions which will be submitted to you."

The plaintiff excepted.

"Now, in order to enable you to answer the first issue 'Yes,' you must find first that he was struck by a train of the defendant, that that train had no electric headlight, as required by statute, and that not having the headlight was the cause, and the proximate cause, of the injury. It does not make one particle of difference whether there was any headlight or not. That might have been negligence, and I tell you, as argued by Mr. Shaw and admitted by Mr. Rose, it was negligence for them to run a train without an electric headlight, because the statutes so require. But that would be immaterial unless the train that did not have an electric headlight hit him, and would not have hit him if it had an electric headlight. Do you understand that? The proximate cause is the dominant, efficient cause--that cause without the operation of which the accident would not have happened."

The plaintiff excepted.

"If you shall find, by the greater weight of the evidence--the burden of proof being upon the plaintiff to so satisfy you--that the deceased was struck by the train which was running without a headlight, and that the failure to have a headlight was the cause, and the proximate cause as I have defined it to you, of the deceased being struck and killed, that is, that the deceased would not have been struck if the train had had an electric headlight, then you will answer the first issue, 'Yes.' But if you should not be satisfied by the greater weight of the evidence that the deceased would not have been struck if the train had had an electric headlight burning--that is to say, if you are not satisfied that Mr. McAllister would not have been struck if the light had been burning--then you will answer the first issue 'No.' "

The plaintiff excepted.

"And again, if you should find from the evidence, and by its greater weight, that the deceased was not struck by the engine, but that the engine had passed the deceased and that he was struck by some other portion of the train, or by falling against it, or otherwise, then you should answer the first issue 'No.' "

The plaintiff excepted.

The jury answered the first issue as to negligence in the negative, and the plaintiff appealed from the judgment rendered in favor of the defendant.

Shaw & MacLean, of Fayetteville, for appellant.

Rose & Rose, of Fayetteville, for defendant.

ALLEN J.

The exceptions chiefly relied on by the plaintiff's counsel in his carefully prepared brief are to the opening paragraph of his honor's charge upon the ground that it is an argument in behalf of the defendant, and to the charge that:

"In order to enable you to answer the first issue 'Yes,' you must find first that he was struck by a train of the defendant, that that train had no electric headlight, as required by statute, and that not having the headlight was the cause, and the proximate cause, of the injury. It does not make one particle of difference whether there was any headlight or not. That might have been negligence, and I tell you, as argued by Mr. Shaw and admitted by Mr. Rose, it was negligence for them to run a train without an electric headlight, because the statutes so require. But that would be immaterial unless the train that did not have an electric headlight hit him, and would not have hit him if it had had an electric headlight. Do you understand that?"

The plaintiff does not except to the whole of the first paragraph of the charge. He omits from the exception the concluding sentence, which is an appeal to the jury to consider the evidence coolly and dispassionately and to answer the issues according to the law and the evidence. The part excepted to standing alone, might be objectionable, but when considered as a whole, as it is our duty to do, it contains no expression of opinion upon the facts, nor is it an argument in behalf of either party, and, on the contrary it is an earnest...