Norris v. Atlantic Coast Line R. Co.

Decision Date04 May 1910
Citation67 S.E. 1017,152 N.C. 505
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Harnett County; W. R. Allen, Judge.

Action by R. B. Norris against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Where a railroad negligently ran an engine and tender backwards at night at a high speed through a thickly settled community where a large number of persons are accustomed to use the track as a walkway, and where two persons were on the track the act of one in attempting to save the other on discovering the peril was not contributory negligence as a matter of law.

There was evidence on the part of plaintiff which tended to show that on the night of June 4, 1906, plaintiff, with a comrade one J. H. Stewart, left the village of Benson, a station on defendant's road, and was walking along the track towards Dunn; that they left Benson about 10:30 p. m., just after the regular train had passed, and at a point about 2 3/4 miles from Benson Stewart said, "Let's rest," and sat down on a cross-tie with his head a little dropped; that while Stewart was so placed, and plaintiff was standing across the track near the ties, an engine and tender of defendant company approached, the tender being in front as it was moving; that the engine was off schedule, going down the road to relieve a passenger train, which had been disabled and was waiting on the track some distance away; that it had a lantern in front of the tender, which gave light, throwing a light on the track for 10 or 15 feet in front as it was moving; that there were several public crossings back of them, one of them a very much used crossing about 250 yards away, and another 245 yards ahead; that there were also two whistle posts near, the point being in the vicinity of Mingo another station on the road; that, when plaintiff realized it was a train, he called to Stewart, and then jumped across the track to pull him off, and in the effort to save him they were struck by the engine, and Stewart was killed and plaintiff badly injured; that it was a thickly settled community where people were much accustomed to use the track, and the engine approached running very rapidly and without giving any signals. Plaintiff testified that he saw the light on the tender in time to have saved Stewart, but did not realize it was a train till he called. There was a signed statement by plaintiff, introduced by defendant, which had been made shortly after the occurrence, and tending, in some respects, to contradict his statement.

Some of the evidence pertinent to the issues is set out in the record as follows:

Plaintiff testified: "I and J. H. Stewart were coming from Benson on June 4, 1906. We left Benson about 10:30 at night, and traveled 3 or 3 1/2 miles. We left after the shoofly and traveled on the railroad. Stewart sat down and said, 'Let's rest.' We had passed several crossings. Stewart sat down near a footpath, on the right side, on the end of a cross-tie, with his head a little dropped. I was standing on the east side of the track, at the end of the cross-tie. I saw a light and heard the train. Stewart did not notice it, and I jumped and caught him, and the train knocked me loose. I thought it was a box car in front, or an engine and tender running backwards. The light showed to be like a lantern. It threw a light 10 or 15 feet in front. I could see the light a good ways off. It was dim. I saw the light far enough off to have saved Stewart and myself, but did not know it was a train, and heard no bell or whistle. The train made very little noise, and was running very fast. Everybody travels the railroad, night and day. It is a thickly settled community. All use it as a public footpath. There is a crossing 250 yards back towards Benson, and in front about 245 yards. We were 180 steps from a whistle post. Cannot tell what happened for a short time after I was struck. Part of the time I was sensible and part of the time not." And on cross-examination the witness said: "I had taken one drink. I saw Stewart take one drink. He appeared sober. I had a pint of whisky with me; took one drink on the way. It took us 40 or 45 minutes to go from Benson to place where I was hurt. When I saw the light and heard the train, I was standing near the end of the ties. I called to Stewart. He did not notice me, and I jumped across to pull him off. I do not know whether or not the train struck Stewart. I was under the influence of drug when I signed paper for W. H. Pope. I get about same wages I did before."

Jesse McLamb, witness for plaintiff, testified as follows: "I live between Dunn and Benson. I was going home from McLamb's; had been taking some bee-gums. The shoofly passed, and we started home. I was in some 50 yards of home and heard the roar of the train. It was going backwards; had a glimmer of light. I heard no whistle or bell. As I got home clock struck 11. The train was going mighty fast--as fast as I ever saw one run. There is a public crossing before you get to the trestle, another after you pass, and at my house still another. Stewart's body was 200 or 300 yards from crossing at my house. Went to see Norris in two or three weeks. He was in bed, and seemed to be suffering. People walk the railroad more than the county road. The community is thickly settled, has been so used ever since built, 30 years or more. There is a great deal of foot travel along this part of the track, both day and night."

W. L. Stewart testified: "Got to railroad and saw glimmering light. It was very little, and I look it to be a switch light. Almost by the time I got off the track the train passed; no whistle or bell. It looked like an engine and tender running backwards, and was running very fast. The railroad is traveled a great deal, day and night, by pedestrians. Saw Norris next morning; did not appear to know anything. He was suffering. He was feeble a long time. There are two whistle posts near the place the injury occurred. The nearest crossing is 200 or 300 yards towards Benson, and is used a great deal by the public."

Nazro Stewart, witness for plaintiff, gave substantially the same testimony as W. L. Stewart, and said he saw a dim light that looked about like a star; that train consisted of an engine, running backwards, with tender in front. No whistle or bell sounded; train making very little noise, and was running very fast. We hardly had time to clear the track before it passed. This part or track is used a great deal by the public as a footway."

J. A. Stewart, witness for plaintiff, testified: "There has been a crossing near this place since I can remember. Railroad is used as a footpath; thickly populated community, and the railroad is used as a footway a great deal, both day and night."

A. W. Stewart, witness for plaintiff, testified: "I was sitting on my piazza, 150 yards from railroad, about 11 o'clock at night. Engine and tender passed, running backwards. It had a little light in front; was running very fast; heard no signals. The train was running as fast as I ever saw one."

Among other witnesses for defendant, Capt. Bullock testified: "I was engineer on engine and tender, was running as a second section of 31, and 20 minutes behind it at Benson. Shoofly left Benson at about 11:15. We were running 20 miles an hour. Six trains passed this point that night. I saw no one. We had a headlight on rear and lantern on tender, running backward. I tried to ring bell at all crossings and blow whistle; cannot say positively as to this one. It was equipped as engines usually are when running backward. I was going to Wade, N. C., to the relief of a through passenger train which was disabled and waiting."

And Capt. Howie, witness for defendant, testified: "I was conductor on this train. We did not make schedule on account of running backward. [Testimony as to equipment same as witness Bullock.] We were going to Wade, N. C., to the relief of a through passenger train which was disabled and waiting. I told Capt. Goodrich, the section master, that we came near striking some people that night, as I saw some persons right close to the track. We were running fast, but I cannot say how many miles per hour; cannot say as to whether signals were given for crossings."

The jury rendered the following verdict:

"(1) Was the plaintiff injured by the negligence of the defendant? Answer: Yes.
"(2) Did the plaintiff by his own negligence contribute to his own injury? Answer: No.
"(3) What damage is the plaintiff entitled to recover? Answer: $1,500."

Judgment for plaintiff, and defendant excepted and appealed, assigning for error the refusal of the court to dismiss as on judgment of nonsuit.

J. C. Clifford, for appellant.

R. L. Godwin and E. F. Young, for appellee.

HOKE, J. (after stating the facts as above).

It has been repeatedly held with us that where a person is traveling along a highway so close to a railroad track, and in such a position, that the approach of a train should be adverted to in the exercise of reasonable care for his own safety, or where a person is on the track at a place where travelers are habitually accustomed to use the same for a walkway, they have a right to rely to some extent and under some conditions upon the signals and warnings to be given by trains at public crossings and other points where such signals are usually and ordinarily required, and that a failure on the part of the company's agents and employés operating its trains to give proper signals at such points is ordinarily evidence of negligence; and, where such failure is the proximate cause of an injury, it is, under some circumstances, evidence from which actionable negligence may be inferred.

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