Morrow v. North Carolina R. Co.
| Decision Date | 13 November 1907 |
| Citation | 59 S.E. 158,146 N.C. 14 |
| Parties | MORROW v. NORTH CAROLINA R. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Alamance County; O. H. Allen, Judge.
This was a civil action instituted by John W. Morrow against the North Carolina Railroad Company for personal injuries received by the plaintiff. A verdict and judgment was had for the plaintiff in the sum of $4,000. The court submitted the usual issues of negligence, contributory negligence, and damage, all of which were answered for the plaintiff. From the judgment rendered, the defendant appealed. Affirmed.
The instruction, in action for injury to a traveler from being struck by a passenger train as he was going over a railroad crossing, just after a freight train had passed, that if the conditions from the smoke and cloudy weather, the lateness in the day, and the moving of freight trains, were such that looking would not disclose the train, and plaintiff crossed even without looking and listening, he would be absolved from the usual consequences of such omission, is erroneous; the conditions of the atmosphere and the hour not being obstructions, and not excusing a traveler from exercising his senses of sight and hearing.
King & Kimball and Parker & Parker, for appellant.
Brooks & Thomson and W. H. Carroll, for appellee.
There are a number of exceptions in the record to the admission of evidence, but as none of them are mentioned in appellant's brief, or were called to our attention in the argument, we deem them to have been abandoned. The defendant offered no evidence. That which was offered on behalf of the plaintiff tended to prove these facts: The plaintiff, who lived in Alamance county, about the 17th day of December 1905, went to Greensboro. While there, in company with a friend, he approached a crossing of the defendant railroad company near the coal chute in the suburbs of Greensboro. Upon reaching the crossing, which was a public highway, he found it obstructed by a freight train headed in the direction of Charlotte. He waited about five minutes for the freight to clear the crossing, and at once started to the track to cross. A passenger train, coming from the direction of Charlotte into Greensboro at a high rate of speed, ran against him, knocking him off of the track and breaking his right arm. That it was between 4 and 5 o'clock in the afternoon on a cloudy day and drizzling rain upon melting sleet and ice. That from the ground, on account of the thawing of the ice and heavy atmosphere, a fog was rising from the ground. That the smoke from the outgoing freight train circled back, mingling with the fog and settling over the track and crossing. That before going upon the track in his effort to safely cross plaintiff stopped and looked out to see if there was any train approaching and listened likewise. That he saw no train and heard none. He did not know there was a double track along the line at this crossing, and the passenger came upon him suddenly, without ringing its bell or blowing its whistle, or giving any other signal or warning of its approach. At the close of the evidence, the defendant moved his honor to dismiss the plaintiff's complaint and for judgment as of nonsuit, for that on the plaintiff's evidence his injury resulted from his own negligence, and not from any negligence of the defendant. The refusal to grant this motion is assigned as error, and the correctness of the ruling seems to be the principal contention in the case.
In view of the decided character of the...
To continue reading
Request your trial