Moore v. Charlotte Electric Street Ry. Co.

• Decision Date: 04 June 1901
• Citation: 39 S.E. 57,128 N.C. 455
• Parties: MOORE v. CHARLOTTE ELECTRIC ST. RY. CO.
• Court: North Carolina Supreme Court

39 S.E. 57

128 N.C. 455

MOORE v. CHARLOTTE ELECTRIC ST. RY. CO.

Supreme Court of North Carolina

June 4, 1901

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

Action by Walter Moore against the Charlotte Electric Street-Railway Company. From a judgment of nonsuit, plaintiff appeals. Reversed.

Plaintiff testified that, when about to cross the track of defendant street railway, he looked and saw the car some distance away. His horse was about halfway across the rail when he saw the car near him. He attempted to get out of the way, but the car struck his vehicle before he could do so. The motorman could have seen some distance ahead that he was about to cross. Both the car and vehicle had lighted lamps. No gong was rung before the accident, which occurred on one of the principal streets of the city. Plaintiff, after starting to cross, did not look for the car until his horse's feet were on the track. It was then about 40 feet from him, coming at about the rate of 15 miles an hour. Held, that a demurrer to the evidence was improperly sustained.

Osborne Maxwell & Keerans, for appellant.

Burwell Walker & Cansler, for appellee.

DOUGLAS J.

This was an action brought by the plaintiff to recover damages for injuries alleged to have been caused by the negligence of the defendant. Walter Moore, the plaintiff, testified: "On the night of March 26, 1900, at about 8 o'clock, I was driving a one-horse surrey on West Trade street, near the old court house, and had started to drive across the track of the defendant to water my horse at a fountain near the old court house. I looked and saw the car some distance from me. When the horse was about halfway across the rail, I found the car near me, and drew the horse's head around so as to get out of the way of the car that was coming, to prevent being struck. The car struck the surrey and broke both wheels in front and the top of same. I was thrown cut between the dashboard and the shaft, and was injured in my right side and hip, which disabled me for two weeks or more. It cost me $4 to have the top of the hack fixed, and about one month thereafter I had to quit the business. When I started across the street I looked and saw the car about 30 or 40 feet beyond Church street crossing. I had a light on the front of my carriage, and the car also had a light on. The motorman could have seen some distance ahead that I was going to cross the track. When I first saw the car, it appeared from the distance it was from me that I had plenty of time to cross over, but the motorman was running at such rapid speed that he struck me. He did not ring any gong until after I was struck, and did not stop the car until he had ran a length ahead of me, and then came and asked if I was hurry. It appeared to be running about 15 miles an hour. I was on this side of Church street crossing when the car struck me, and the motorman did not ring any gong at Church street crossing. It appeared to be running very rapidly when the car struck me. The length of the car was about 24 feet. It was only about one-half a block from the public square where I was stricken, and the street on which I was was one of the principal streets of the city, and on which many vehicles and passengers pass and cross. I started across, but did not look for the car until my horse's feet were on the track. As I pulled the curtain and looked, it was then about 40 feet from me, and appeared to be coming at about 15 miles an hour. I did my best to get out of the way." At the close of the plaintiff's evidence the defendant demurred to same under Acts 1897, as amended by the act of 1899, and the court sustained the demurrer and dismissed the action. The plaintiff insists that the case should have been submitted to the jury, and that there was more than a mere scintilla of evidence.

It is well settled in this state that on a motion for nonsuit the evidence must be construed in the light most favorable to the plaintiff, both as to effect and credibility. This rule is clearly laid down by Furches, J., in delivering the opinion of the court in Johnson v. Railway Co., 122 N.C 955, 29 S.E. 784, in the following words: "In cases of demurrer and motions to dismiss under the act of 1897, the evidence must be taken most strongly against the defendant. Every fact that it reasonably tends to prove must be taken as proved, as the jury might so find." To the same effect are the following cases: Collins v. Swanson, 121 N.C. 67, 28 S.E. 65; Cable v. Railway Co., 122 N.C. 892, 29 S.E. 377; Cox v. Railroad Co., 123 N.C. 604, 31 S.E. 848; Cogdell v. Railroad Co., 124 N.C. 302, 32 S.E. 706; Gates v. Max, 125 N.C. 139, 34 S.E. 266; Capital Printing Co. v. City of Raleigh, 126 N.C. 516, 36 S.E. 33. Construing the evidence in the light of these decisions, we are of opinion that there was certainly more than a scintilla of evidence tending to prove the negligence of the defendant, and that the case ought to have been submitted to the jury.

In case of nonsuit, it is neither necessary nor practicable to discuss as fully in detail points that may arise as it is in cases that have been tried where the alleged errors are specifically pointed out by exception, and we will therefore confine ourselves to a discussion of the general principles governing such cases.

As our state has few cities of even moderate size, and consequently but few street railways, we find but little help from our own Reports. In fact, neither of the learned counsel who so ably argued the case cited us to a single decision in this state which can be taken as an authority. In Doster v. Railway Co., 117 N.C. 651, 23 S.E. 449, 34 L. R. A. 481, there was no collision whatever; the damage being caused entirely by the mule, which took fright at the noise of the street car while running, as the plaintiff himself testified, "in the usual and ordinary way." The destructive proclivities and capabilities of a mule, whether frightened or not, are of common knowledge, and furnish but slight analogy for any other kind of accident. In the absence of home authorities, we must examine those where street railways have longest been in most general use. The following extract from the opinion of the court in Cooke v. Traction Co., 80 Md. 551, 554, 31 A. 327, very clearly expresses our own views: "There is, to begin with, no possible analogy between a case growing out of an injury caused by a street-railway car to a person rightfully upon the public thoroughfare, and a case involving an injury...