Means v. Carolina Cent. R. Co

• Decision Date: 05 May 1899
• Citation: 124 N.C. 574,32 S.E. 960
• Parties: MEANS. v. CAROLINA CENT. R. CO.
• Court: North Carolina Supreme Court

32 S.E. 960

(124 N.C. 574)

MEANS.

v.CAROLINA CENT. R. CO.

Supreme Court of North Carolina.

May 5, 1899.

Railroads— Injuries to Passengers — Feeight Trains—Necessity of Conductors—Evidence—Res Gestae—Materiality.

1. It was negligence for a railroad company to have no conductor on a freight train having a passenger coach attached, where it carried a good many passengers at ordinary times, and went to a city at a scheduled time, and returned 'after giving the passengers a few hours' time to remain in the city, thereby enabling them to reach their homes on the same day; the object of the passenger coach not being simply to accommodate the public, but to establish a passenger business.

2. In an action against a railroad company for the death of a passenger occasioned by the absence of a conductor, a declaration of the passenger, "Get out of my way; I want to get to Mr. Hall [the engineer], to give him these tickets, before the train gets too fast, "—is admissible as a part of the res gestae.

3. In an action for the death of a passenger killed on a freight train while returning from the engineer, to whom he had given his tickets, to a passenger coach, evidence that the engineer would have stopped the train if he had been requested to do so is immaterial.

Appeal from superior court, Mecklenburg county; Greene, Judge.

Action by Maggie Means, administratrix, against the Carolina Central Railroad Company. Judgment for defendant and plaintiff appeals. Reversed.

Osborne, Maxwell & Keerans, for appellant

Burwell, Walker & Cansler, for appellee.

MONTGOMERY, J. When this case was here at February term, 1898 (29 S. E. 939), a new trial was ordered because of an error committed by his honor on the trial below in instructing the jury that "it is the duty of a railroad company to have a conductor when there are passengers, and it is negligence not to have one." In reference to that instruction we said: "The rule would apply where the trains are passenger trains, or where a considerable part of the train was for the accommodation of passengers, and the passenger fare would be a considerable part of the inducement to run the train. But where the train is a freight train, with a passenger car attached, it is a fair presumption that the passenger coach is purely for the accommodation of the public; and we cannot say, as a matter of law, that it would be negligence (nothing else appearing) in a railroad company not to furnish a conductor on such trains." In the case as it was made up for this court at the first hearing, nothing appeared as to the nature or destination of the train, except that it was one which consisted of an engine and eleven cars, including one passenger coach and a shanty car, and that it left Charlotte at 4 p. m. Nothing was said of the extent of the passenger traffic. We thought the charge of his honor too broad to fit the facts of that case. The case as presented now has some new features, and important ones. The train, a local one, was operated between Charlotte, by Lincolnton and Shelby. Its schedule time for departure from Shelby was 6 a. m., and for arrival at Charlotte 10 a. m. It left Charlotte at 4 p. m. The engineer testified that "at ordinary times we carried a good many passengers." It is apparent, from...