Parker v. Wilmington & Weldon R.R. Co.

• Decision Date: 28 February 1882
• Citation: Parker v. Wilmington & Weldon R.R. Co., 86 N.C. 221 (N.C. 1882)
• Parties: ROBERT H. PARKER, Adm'r, v. WILMINGTON & WELDON RAILROAD COMPANY.
• Court: North Carolina Supreme Court

86 N.C. 221

ROBERT H. PARKER, Adm'r,

v.WILMINGTON & WELDON RAILROAD COMPANY.

Supreme Court of North Carolina.

February Term, 1882.

CIVIL ACTION for damages tried at Fall Term, 1879, of HALIFAX Superior Court, before Avery, J.

Verdict for the defendant.Motion to set aside verdict refused.Judgment for defendant, appeal by plaintiff.

Messrs. J. B. Batchelor, Thos. N. Hill and Day & Zollicoffer, for plaintiff .

Messrs. Spier Whitaker and Gilliam & Gatling, for defendant.

SMITH, C. J.

The facts out of which arises the present action for damages in causing the death of James W. Parker, the plaintiff's intestate, are few and undisputed.The deceased was employed, and had been for sometime previous, at a steam mill erected on land of the defendant company, and with their consent, near the track of the road and about three-fourths of a mile distant south from the town of Enfield.Near the mill was a crossing over the road-bed, used by persons visiting it.On the afternoon of December 14th, 1878, according to schedule time, the regular passenger train with six coaches attached left the station at Enfield, and proceeding towards Wilmington had attained a speed estimated at the rate of 20 miles an hour, and was nearing the crossing, when the deceased, emerging from behind a building, was seen to enter upon the crossing and turn and move two or three steps in the direction of the advancing train.When first observed by the engineer, he was about 100 feet from the engine, and apparently unconscious of danger, and making no effort to get out of the way; the latter at once put on brakes and shut off steam to diminish the speed of the train, and give him longer time to escape.No signal was given by bell or whistle, and the officer in charge says it was impracticable to do all, and he then, as now, thought the course pursued was best calculated to avert a collision.The intestate was stricken down and so severely injured as to live but a few hours afterwards.The brakes were of the most approved kind, and with the cutting off of the steam could be made to bring the train, moving at the rate stated, to a halt in 350 feet, and the superintendent of the road, with many years' experience in running trains, concurred in the opinion that the most prudent course in such emergency was that taken by the engineer to slacken the speed of the advancing train, and give more time for the deceased to extricate himself from his perilous position.A witness at the place, who saw what occurred, saw the deceased come out and enter upon the crossing and move a step or two forward with his hat covering his forehead and eating an apple when he was stricken down.The road at this point towards Enfield was nearly straight, and the train could be seen for several hundred yards in that direction by any one who would look.There was no signal given at the approach towards the crossing, nor was it customary to give any, as a warning; and the working of the machinery of the mill when in operation, made so much noise that the rumbling of a train would hardly be discernible, until one entered near the track and was beyond the houses which obstructed both the view and hearing of it.There was evidence of drinking habits of the deceased, and that he had drunk something that day, but none to show intoxication when he was smitten and killed, nor did any witness testify to any indications of his being in this condition by his conduct or speech.The deceased was 33 years of age and unmarried, and was at once removed to Enfield.As soon as the train could be stopped, the engineer went back to the place where the deceased had fallen, and asked him if he was much hurt, but received no answer.

During the examination of the plaintiff on his own behalf, he was asked the two questions, which, after objection from the plaintiff, were allowed, and with the responses, are as follows:

1.Did you go back to Enfield to see about him?

I did not go, owing to the condition of my family.I could not leave them.My wife was so shocked at hearing the news, she went into spasms, and I did not think she would live till I got back, and I did not think it proper he should be brought home.

2.Could not your son have been buried at home without your wife's knowing it?

There was no burying ground there.

The questions were permitted as affecting the witness' credit.

The findings of the jury upon the series of issues submitted are in substance these:

The plaintiff's intestate was guilty of negligence at the time of receiving the injury, and could have avoided it by using ordinary care on his part.

The defendant, through the conduct of its agents, did not negligently run against the person of the deceased, nor was that conduct wanton and careless, nor was the intestate's negligence in being on the track known in time to enable the manager of the train to avoid the collision by the exercise of ordinary care and prudence.

The instructions asked for the plaintiff may be condensed in the following propositions:

It was gross negligence in the company's agent not to blow the whistle when approaching the crossing, and again when the deceased was first seen.When the perilous position of the deceased on the track and in front of the engine was seen, it was the engineer's duty to use ordinary care to avert the consequences of this negligent self-exposure, and if he fail to exercise such care, the company notwithstanding intestate's negligence, would be liable.The court declined these requests, and so far as the instructions are the subject of exception, charged the jury as follows:

The rule of law in this state applicable to the case is that when an injury arises neither from malice, design, or gross and wanton neglect, but only from the want of ordinary care, and both parties are in fault, the party injured is taken to have brought the injury on himself.Then adverting to the rule that while the jury must ascertain the facts, the court must declare whether they import negligence as a matter of law, His Honor proceeds to say:

If the plaintiff's intestate went upon the track and suffered injury from the passing train, he would be deemed negligent in so exposing himself to...