Mercer v. Powell, 600.

• Citation: 12 S.E.2d 227,218 N.C. 642
• Decision Date: 20 December 1940
• Docket Number: No. 600.,600.
• Court: North Carolina Supreme Court
• Parties: MERCER . v. POWELL et al.

12 S.E.2d 227
218 N.C. 642

MERCER .
v.
POWELL et al.

No. 600.

Supreme Court of North Carolina

Dec. 20, 1940.

.

SEA WELL, OLARKSON, and DEVIN, JJ., dissenting.

Appeal from Superior Court, Richmond County; J. H. Clement, Judge.

Action by Mrs. Ncaler Mercer, administratrix of the estate of A. H. Mercer, deceased, against L. R. Powell, Jr., and another, receivers of Seaboard Air Line Railway Company, and others, to recover damages for alleged wrongful death. After the institution of the action, defendant G. S. Stephenson died and A. A. Webb, as administrator of the estate of G. S. Ste-phenson, deceased, was made a party de-

[12 S.E.2d 228]

fendant. From a judgment as of nonsuit, plaintiff appeals.

Affirmed.

Civil action for recovery of damage for alleged wrongful death. C.S. §§ 160, 161.

Plaintiff alleges that the intestate, A. H. Mercer, was killed on the early morning of July 10, 1937, at around 3 o'clock, when an engine and train of defendants and operated by G. S. Stephenson, engineer, ran over him at or near a point some three miles east of Laurinburg, known as Southerland Crossing, and that his death "was caused by the negligence and carelessness of the defendant receivers, and their said engineer, in that while plaintiff's intestate was in a prostrate and helpless condition on the defendants' said track, the defendants negligently and carelessly ran their engine and train upon and over his body"; in that defendants' engineer failed to have the engine equipped with proper lights, and to keep a proper lookout so that he could and would have observed the intestate to be in a prostrate and helpless condition in time to have avoided running over intestate; and in that said engineer "failed to sound the whistle of said engine" and "to give other warning that might arouse or startle the plaintiff's intestate".

Defendants deny the material allegations of the complaint and plead contributory negligence of plaintiff's intestate in bar of any right to recover herein.

After the institution of the action and answer filed, defendant, G. S. Stephenson, died, and A. A. Webb, who was duly appointed as administrator of his estate, was made a party defendant and came into court and adopted the answer of other defendants.

In reply, the plaintiff alleges that notwithstanding any negligence on the part of plaintiff's intestate, the defendants in the exercise of proper care could and should have discovered that he was in a helpless condition on their railroad track in time to have avoided running over him with their train, and that defendants had the last clear chance of preventing the injury and death of intestate.

On the trial below there was judgment as of nonsuit at close of plaintiff's evidence.

Evidence for plaintiff tended to show substantially these facts as of the date of A. H. Mercer's death, July 10, 1937: On the Southerland farm in Scotland County, a dirt road "kept up by the State" leading from Highway No. 74 to the old MaxtonLaurinburg road crosses the main line, single track, of Seaboard Air-Line Railroad, which runs from Wilmington via Lumberton, Maxton and Laurinburg to Hamlet, all in North Carolina. The railroad runs east and west and the dirt road north and south. This crossing is known as Southerland Crossing and is located about three or four miles east of Laurinburg, and one and three-fourths miles to two miles east of Dixie Siding, where Mercer was last seen. The railroad is straight and practically level, "no grade much" at this crossing. This condition extends a mile or more in both directions. For the entire width of the road across the track dirt is filled in level with the top of the rails, gradually sloping at the edges down to the level of the railroad ties, four or five inches below, thus forming a fill of that height. Grass was growing between and on the outside of the rails, but not on the road fill.

A. H. Mercer was in good health, one-armed, and weighed about 195 pounds. He lived in the town of Hamlet, and was engaged in the bottling business, selling more than 4, 000 cases the month he was killed. He left home about one o'clock in the afternoon of said date, driving a 1936 maroon Ford car; and about four o'clock next thereafter he appeared in Lumberton at the Green Frog, where drinks and beer were sold, and where he first treated "a bunch in there" to beer, and remained there two or more hours, drinking beer, ten or more bottles, until about dusk "six or seven or eight o'clock" when he left, "pretty drunk", walking up the street north. While at the Green Frog "he had a roll of money on him", and had a twenty dollar bill changed. Thereafter about nine o'clock he was first seen in West Lumberton running through the yard of Ed Parnell, to whom he was slightly related, and in 10 or 15 minutes he appeared bareheaded and in his shirt sleeves on the highway in front of the Parnell house, and on meeting Parnell "made a dive" at, struck and knocked him down, and then ran, striking and cutting his head on a tree. He refused to go to a hospital in an ambulance, but rode in to Lumberton with one Jake Regan, a colored man whom he knew, and though the colored man tried to take him to a hospital he refused to enter one. At that time "he was drunk", "in a fighting and pugnacious

[12 S.E.2d 229]

mood" and "seemed to be bent on fighting with somebody". Through the colored man he hired for five dollars a taxi, driven by Donnie Lee Porter, an Indian boy, to take him to Laurinburg or Hamlet. On the way the taxi first stopped at a filling station just west of Lumberton, where one Prentiss Carter, an Indian, who had not before seen Mercer but who, after asking permission to go with them to Laurinburg, entered the taxi. The next stop was for about 15 minutes at a filling station operated by an Indian about one mile from Pembroke. Mercer went in there and washed the blood off his face, bought some beer and paid for it in change. They traveled, and on the way, Mercer "wanted to turn around and come back * * * wanted to get out * * * wanted to go back to Lumberton * * * but Donnie Lee would not let him * * * would not bring him back but kept on going" until between eleven and eleven thirty o'clock they arrived at Bryant's filling station, just east of Laurinburg and about one and three-fourths miles from Southerland Crossing. There Mercer ordered beer and, according to Carter, drank a couple or three and, according to Bryant, an order for two beers and a Coca-Cola was filled and Mercer got out of the taxi with his beer in hand and went to the rear of the filling station, walking along the road leading across the railroad, saying he would be back in a few minutes. At that time he was staggering. So far as the evidence discloses he was not again seen alive. After searching in vain for him with a flashlight a few minutes later, around the back of the filling station and along the railroad, Donnie Lee Porter and Prentiss Carter left about twelve o'clock in the taxi, going toward Lumberton. Carter testified that they came back to Lumberton. One Bruce Peel, who lived across the railroad about 75 or 80 feet from the right of way from the Bryant filling station at Dixie Siding, and who, on account of the heat of the night, was sitting on his front porch, testified that he saw a yellow car drive up to the filling station, and referring to someone coming out with a flashlight, he said, "I had not seen anyone go either way until they come with the light".

About twelve o'clock when Frank Car-michael, in returning to his farm for another load of cantaloupes which he was hauling, crossed the railroad at Covington Siding, located about two and one-half miles east of Laurinburg and one mile west of Southerland Crossing, "some one got to yelling" at him, "Hey, there" about three times, the voice sounding like it came from "on the south side of the railroad track". After reloading and while he was returning, and before he reached the railroad, "close to one o'clock, a freight train passed going west, after which he and some colored men searched up and down the track "to see if they could find any signs...