Neal v. Carolina Cent. R. Co.

• Decision Date: 22 May 1900
• Parties: NEAL v. CAROLINA CENT. R. CO.
• Court: North Carolina Supreme Court

36 S.E. 117

126 N.C. 634

NEAL v. CAROLINA CENT. R. CO.

Supreme Court of North Carolina

May 22, 1900

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

Action by W. K. Neal, administrator of Charles M. Coffin, deceased against the Carolina Central Railroad Company. Judgment for defendant. Plaintiff appeals. Affirmed.

Douglas and Clark, JJ., dissenting.

A person killing in the daytime, while walking on a railroad track, where it was straight for 150 yards, by a train going in the same direction at a speed in excess of that allowed by ordinance, no bell being rung, and he not being seen by the trainmen, though they could, if looking, have seen him, is guilty of contributory negligence preventing recovery.

Jones & Tillett and Clarkson & Duls, for appellant.

Burwell Walker & Cansler, for appellee.

FURCHES J.

This is an action to recover damages for the wrongful killing of Charles M. Coffin. The defendant does not deny the killing but denies that it was caused by its default or negligence and alleges that it was the result of the negligence of plaintiff's intestate. The evidence of plaintiff showed that intestate was killed by the shifting engine on defendant's road, in the city of Charlotte; that this engine was running backwards, drawing a gondola car after it; that it was running at a high rate of speed, in a westward direction, and intestate was walking on defendant's track, going in the same direction; that this train had come very near running over a team of mules at the street crossing, scaring the mules, and making them unmanageable, and that the engineer and crew were watching the mules, and laughing at the driver trying to manage them. The road was straight for 150 yards, and, as the killing occurred in open daylight, the crew and engineer might have seen intestate, and intestate have seen the train, for that distance. The intestate was walking on the defendant's track when he was knocked down by defendant's train, run over, and killed. The plaintiff also offered in evidence an ordinance of the city forbidding trains to run at a greater speed than four miles an hour while passing through the city, and requiring the bell to be rung. Plaintiff showed that this train was running at a high rate of speed, and greater than that allowed by the ordinance, and that no bell was being rung. The plaintiff, having offered evidence as to amount of damages, rested the case. Defendant offered no evidence, demurred to plaintiff's evidence, and moved to nonsuit plaintiff, under chapter 109, Acts 1897. After hearing argument of counsel, and upon full consideration of the matter, the court allowed defendant's motion, and assigned the following reasons therefor: "First. That the evidence, if believed, showed the defendant guilty of negligence. Second. That the evidence being that offered by the plaintiff, and without contradiction, must, as to the plaintiff, be believed, and, if believed, it showed, and the conclusion could not be reasonably avoided, that the plaintiff's intestate, by his own negligence, contributed to cause the injury. Third. That while it might be found that, notwithstanding the negligence of plaintiff's intestate, the defendant might, by ordinary care, have avoided the injury, the evidence, which, as to the plaintiff, must be believed, clearly showed that, notwithstanding defendant's negligence, the plaintiff's intestate, by the exercise of ordinary care, might himself, up to the last moment, have avoided the injury. Therefore the negligence of plaintiff's intestate, if not the proximate cause, at least concurred with defendant's negligence, up to the last moment, in together constituting the proximate cause of the injury. The third issue, therefore, should be answered 'No,' and the plaintiff is not entitled to recover in the action. In deference to this intimation, the plaintiff, having excepted, submitted to a nonsuit, and judgment was entered accordingly." The plaintiff assigned the following grounds of error: (1) "That the court added at the end of the third issue tendered the clause, 'And, if so, was defendant's failure to avoid the injury the proximate cause thereof?"' (2) "The plaintiff assigns as error the rulings of his honor sustaining the demurrer and dismissing the action." (3) "That the court, in and by its said judgment, dismissed the action." The evidence was all introduced by the plaintiff; the defendant introduced none; and there is no exception as to the competency of any of the evidence.

The court finds from this evidence that the defendant was guilty of negligence; and while we think from the evidence, taken to be true, that it was guilty of negligence, as this negligence was shown by the evidence of the plaintiff, the court could not have found this issue against the defendant, if it had complained of and excepted to it, and brought it before us for review. It was the finding of an affirmative issue against the defendant upon the evidence of the plaintiff. Spruill v. Insurance Co., 120 N.C. 141, 27 S.E. 39; Anniston Nat. Bank v. School Committee of Durham, 121 N.C. 109, 28 S.E. 134; White v. Railroad, 121 N.C. 484, 27 S.E. 1002. But this ruling is not before us for review. The defendant neither excepted nor appealed, and the plaintiff cannot except to this finding, because it is in his favor. And it seems to us that there can be no doubt but what the intestate of the plaintiff was also guilty of negligence, if the evidence be true, and every word of it believed. This issue is, then, not one that must be found by a jury, but one that may be found by the court. It does not present a question where reasonable men might put different constructions upon it, and come to the conclusion that the plaintiff's intestate was not guilty of negligence. If plaintiff's intestate was walking upon defendant's road, in open daylight, on a straight piece of road, where he could have seen defendant's train for 150 yards, and was run over and injured, he was guilty of negligence. And, although the defendant may have also been guilty of negligence in running its train at a greater rate of speed than was allowed by the town ordinance, or in not ringing its bell as required by said ordinance, and in not keeping a lookout by its engineer as it should have done, yet the injury would be attributed to the negligence of the plaintiff's intestate. It has been so held in Meredith v. Railroad Co., 108 N.C. 616, 13 S.E. 137; Norwood v. Railroad Co., 111 N.C. 236, 16 S.E. 4; High v. Railroad Co., 112 N.C. 385, 17 S.E. 79. These cases hold that it is not negligence in a railroad company where its train runs over a man walking on the railroad track, apparently in possession of his faculties, and in the absence of any reason to suppose that he was not. This is put upon the ground that the engineer may reasonably suppose that the man will step off in time to prevent injury. In McAdoo v. Railroad Co., 105 N.C. 140, 11 S.E. 316, this doctrine is expressly held; and it is further held in that case that, on account of plaintiff's negligence in standing on the road and allowing defendant's train to run over him, this was concurring negligence, and prevented him from recovering damages. McAdoo v. Railroad Co. has been cited and approved on this point in Syme v. Railroad Co., 113 N.C. 565, 18 S.E. 114, and in Smith v. Railroad Co., 114 N.C. 744, 19 S.E. 863, 923, 25 L. R. A. 287, and many other cases. We know that it has been held in many cases that a railroad company is liable for damages for carelessly and negligently running over and killing or injuring persons on its road, in which it appeared that the persons killed or injured were also guilty of negligence; and it may not be easy to distinguish some of these from the one under consideration. But there is a distinction, and a distinct line of decisions, as we have shown by the cases we have cited. The distinction does not seem to lie so much in the negligence of the parties, where both are guilty of negligence, as it does in the condition of the parties. And we think, upon examination, that it will be found that, where the company has been held liable, it is in cases where the party injured was not upon equal opportunities with the defendant to avoid the injury, and in cases where there was something suggesting to the defendant the injured party's disadvantage or disability; as where the party injured is lying on the railroad track, apparently drunk, or asleep, or on a bridge or trestle, where he could not escape, or could not do so without great danger. In such cases, if the engineer saw the party injured or by proper diligence should have seen him, the company is liable. It is in such cases as these that the doctrine of proximate cause, or the "last clear chance," is called in to determine the liability.

The doctrine of proximate cause--the "last clear chance"--is firmly established in this state, and we have no idea of abandoning or in any way disturbing it. We think the line of cases where it applies are distinct, and distinguishable from this case, whether we have succeeded in pointing out the distinction or not. Indeed, we do not understand the plaintiff to make this the principal ground upon which he rests his appeal and insists upon a new trial. Nor do we understand the plaintiff seriously to insist but what there is evidence tending to prove--if not to prove--that the plaintiff's intestate was guilty of negligence. But it is contended that if the intestate was guilty of negligence, the defendant being also guilty of negligence, the intestate's negligence was what is termed "contributory negligence," and that contributory negligence is an affirmative issue, and cannot be found by the court. To sustain this position, a number of recent cases have been cited;...