Norwood v. Raleigh & G.R. Co.

Decision Date25 October 1892
Citation16 S.E. 4,111 N.C. 236
PartiesNORWOOD v. RALEIGH & G. R. CO.
CourtNorth Carolina Supreme Court

Appeal from superior court, Wake county; CONNOR, Judge.

Action by Georgiana Norwood, as administratrix, against the Raleigh & Gaston Railroad Company for negligently killing her intestate. Judgment for defendant. Plaintiff appeals. Affirmed.

Intestate was found, after dark, lying with his head resting on the end of a cross-tie of defendant's track. It was supposed that he was struck, while sitting on the cross-tie, by an engine which passed a short time before he was found. The engineer and fireman testified that they did not see intestate, and the former testified that the engine had a good headlight and that he kept a constant lookout. There was evidence that intestate had been drinking that evening. Held that, if intestate carelessly, or in a drunken stupor, remained on the track until the engine struck him, he was negligent.

The other facts fully appear in the following statement by AVERY J.:

After the testimony was closed, the court intimated that the plaintiff was not entitled, in any view of the evidence, to recover. The plaintiff submitted to judgment of nonsuit, and appealed. The substance of all the material testimony was as follows: The body of plaintiff's intestate was found on the night of December 27, 1891, about two hours after dark 71 1/2 yards north of a bridge over a creek on defendant's road, on the right-hand side of the track (going north;) the top of his head resting against the end of a cross-tie, to which some of his hair seemed to be adhering. There was a bruise upon his hip, another on his shoulder, and a fracture which made a hole in his skull. There were no other injuries appearing from an external examination of his person. There was a curve 21 yards south of the bridge, and the bridge was 54 3/4 yards long. Intestate lived north of the bridge, and there was a path that came upon the track 126 yards south of the bridge. There was a single plank way for the use of persons walking, which was laid along the middle of the bridge for its entire length. The usual route for persons on foot from the house of intestate to the house of one Jeffries, who lived a half mile north of the bridge, and to whose house the intestate had announced his purpose to go after his wife on leaving home after dark, was along said path over the bridge on said plankway and along the track to about the point where the body was found. There the path diverged from the road. An engine and tender belonging to defendant passed over the bridge going north a short time before the body was found at the end of the cross-tie. Neither the engineer nor his fireman nor any other witness testified that he saw the engine strike intestate. The engineer and fireman both testified that a constant lookout was kept by the engineer at and near where the body was found; that they did not see intestate at all; and that it would have been very difficult, if possible, to have seen a man sitting on the end of the cross-tie on the side of the track, but on account of the curvature of the track an object could have been seen from that side eight or ten yards further than from the left side. All the testimony tended to show that, if intestate had been lying prostrate on the track, his body would have been mutilated, and, if standing on the track, his legs would have been crushed, broken, or injured in some way. He had apparently received no injuries but those already mentioned. The engineer testified that he looked out carefully all the time from his place on the right side of the cab. Had a good headlight. His engine was in good condition. That he could have seen a man 75 yards if he were standing on a straight track in his front, but could not have stopped his engine in less than 75 yards. That an object like a man sitting on the cross-tie where intestate's body was found could not be seen more than 50 or 60 yards, and that a man so located would probably be run over before the engineer could distinguish it as the body of a man. That he examined the engine next morning on hearing of Norwood's death and found no blood on it. Also examined the track on the bridge and north of it, and found no blood on it. The foreman of the shops testified that on a straight track a good headlight would enable an engineer to see a man on the track 150 yards, but that at the point where intestate was lying, if he had been sitting on the end of the cross-tie, an engineer would have first discovered at a distance of 30 or 40 yards that there was an object on the track, but could not have distinguished what it was. The fireman testified that when not engaged in putting wood on the fire he kept a constant lookout on the left side of the engine, as did the engineer on the right, and saw no one; that an engine and tender could have been stopped sooner than a train; that the engine was going down grade. There were conflicting opinions as to the rate of speed at which the engine was running, being estimated from 25 to 50 miles an hour. A witness who lived near the track--about 150 yards on the east side of the track and north of the bridge--testified...

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