Pharr v. Southern Ry. Co

• Citation: 119 N.C. 751,26 S.E. 149
• Court: North Carolina Supreme Court
• Decision Date: 21 December 1896
• Parties: PHARR. v. SOUTHERN RY. CO.

26 S.E. 149

119 N.C. 751

PHARR.

v.SOUTHERN RY. CO.

Supreme Court of North Carolina.

Dec. 21, 1896.

Railroad Company—Injury to Person on Track —Liability Notwithstanding Contributory NEGLIGENCE.

1. Where a man, apparently helpless, was lying so near the outer side of a rail as to expose himself to danger from a passing engine, and the engineer, by ordinary care, could have seen him in time to have stopped the train, with safety to those on board, before the enginestruck him, the company is liable for the injury; notwithstanding the man's contributory negligence. Pickett v. Railroad Co., 23 S. E. 264, 117 N. C. 616, followed.

2. The engineer's duty was the same as if the endangered man had lain between the rails.

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

Action by H. N. Pharr, administrator of the estate of Jack Ezzelle, deceased, against the Southern Railway Company, for the death of plaintiff's intestate. Prom a judgment in favor of defendant, plaintiff appeals. Reversed.

Burwell, Walker & Cansler, for appellant.

Geo. P. Bason, for appellee.

MONTGOMERY, J. The plaintiff's intestate was lying in a position horizontal to the railroad track, with a part of his body resting in a slight depression caused by a small ditch. His head, on or between the sills, could not be seen by engineer and fireman, according to their testimony, and was so near the rail as to be struck by the engine as it passed. From the evidence, he was asleep or drunk; probably both. The engineer testified that, as he turned a curve in the road at a point 600 yards distant from the place where the man was killed, he saw the object; that he looked at it carefully, and thought it was a cross-tie. It attracted his attention. His duty then was, more than ever, to have kept a reasonable and proper lookout in his front, in order to discover the nature of the object in time to stop the train, and prevent injury if it should turn out to be a man or other animal. And yet, as we understand the testimony of both the engineer and the fireman, after a careful reading of it, there was no further lookout until the engine was within 50 or 75 yards from where the man was killed, —too late to stop the train and prevent the injury.

The counsel of the defendant, in his argument here, undertook to distinguish the facts in this case from those in the case of Pickett v. Railroad Co., 117 N. C. 616, 23 S. E. 264, and insisted that the law which was announced there upon the facts did not apply to the facts in this case. It is true that in Pickett's Case, supra, the man was lying on the track, partly between the rails, asleep; while in this case no part of the body was between the rails. But we think the rule which requires an engineer to keep a reasonable lookout in his front in...