Norris v. Atlantic Coast Line R. Co.
Decision Date | 04 May 1910 |
Citation | 67 S.E. 1017,152 N.C. 505 |
Parties | NORRIS v. ATLANTIC COAST LINE R. CO. |
Court | North 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: And on cross-examination the witness said:
Jesse McLamb, witness for plaintiff, testified as follows:
W. L. Stewart testified:
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:
A. W. Stewart, witness for plaintiff, testified:
Among other witnesses for defendant, Capt. Bullock testified:
And Capt. Howie, witness for defendant, testified:
The jury rendered the following verdict:
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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