Pharr v. Southern Ry. Co.

• Decision Date: 15 December 1903
• Citation: Pharr v. Southern Ry. Co., 45 S.E. 1021, 133 N.C. 610 (N.C. 1903)
• Parties: PHARR v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

45 S.E. 1021

133 N.C. 610

PHARR v. SOUTHERN RY. CO.

Supreme Court of North Carolina

December 15, 1903

Appeal from Superior Court, Mecklenburg County; Neal, Judge.

Action by H. N. Pharr, administrator, against the Southern Railway Company.Judgment for defendant, and plaintiff appeals.Affirmed.

In an action for the death of a pedestrian stepping on a railroad track in front of an approaching train, the complaint alleged that decedent had a heavy sack on his back, which bent him over, and compelled him to look downward; that opposite to where he was walking, and on another track, an engine was blowing off steam, "making a great noise, and making it impossible almost to see, and almost impossible to hear"; that on account of the noise and steam decedent was unaware of the approaching train and unable to see it that the engineer, in charge of such train saw, or in the exercise of care could have seen, that decedent was in a perilous position, and could have avoided killing him.The answer denied that the engineer saw, or in the exercise of care could have seen, that decedent was in a perilous position, and could have avoided killing him.Held, that this partial denial did not amount to an admission that decedent could not see the engineer or the approaching train, or that he was really unaware of its approach.

Clarkson & Duls, for appellant.

Geo. F Bason and A. B. Andrews, Jr., for appellee.

MONTGOMERY J.

It has been decided by this court over and over again that a railroad company, through its locomotive engineer on a moving train, during daytime, owes no duty to give signals to a pedestrian on its track, who is apparently in possession of his faculties, and in the absence of any reason to suppose that he is not.And the reason is that the engineer may reasonably believe, and act upon the belief, that the walker on the track will get off in time to prevent being stricken.McAdoo v. Railroad,105 N.C. 140, 11 S.E. 376;Meredith v. Railroad,108 N.C. 616, 13 S.E. 137;Norwood v. Railroad,111 N.C. 236, 16 S.E. 4;High v. Railroad,112 N.C. 385, 17 S.E. 79;Neal v. Railroad,126 N.C. 634, 36 S.E. 117, 49 L. R. A. 684;Bessent v. Railroad,132 N.C. 934, 44 S.E. 648.In analogy to the decisions in the above cases the rule has been laid down that, where a person is seen by the engineer walking on a footpath alongside of the track, and out of danger, it may and will be presumed by the engineer that he will remain on the side path, or step farther from the track when he sees the train.Matthews v. Railroad,117 N.C. 640, 23 S.E. 177;Markham v. Railroad,119 N.C 715, 25 S.E. 786.In the case before usthe plaintiff, at the time when he was killed by one of the defendant's engines, was walking with a bag or sack on his back, between the main track and a side track, the space intervening between the tracks being eight feet.People were accustomed to walk there, and there was room enough for that purpose between trains of cars on both tracks at the same time.As he was passing an engine at rest, but exhausting steam, on the side track, either to avoid the escaping steam or to cross the track to reach Fifth street he stepped upon the main track, and was immediately struck by an engine hauling a train of cars on the main track, and moving in the same direction that the plaintiff was going.The evidence of the plaintiff was to the effect that there were no signals of bell or whistle.The plaintiff further introduced the fifth allegation of the complaint and the fifth paragraph of the answer.It was alleged in that part of the complaint that he(plaintiff)"had a heavy sack on his back, which bent him over, and compelled him to look downward that opposite to where he was walking on the switch track was an engine blowing off steam, making a great noise, and making it impossible almost to see, and almost impossible to hear; that on account of the noise of the engine blowing off steam and the cloud of steam in which plaintiff's intestate was enveloped he was unaware of the approach of the train, and unable to see same on the main line track; that at all times while the engine on the main line was approaching plaintiff's intestate within a distance of 200 yards or more, the engineer in charge of the defendant's engine, who was defendant's employé, saw, or in the exercise of due care could have seen, plaintiff's intestate was in a perilous position, and the said engineer, in the exercise of due care, could have prevented and avoided the killing of plaintiff's intestate."The defendant, in the fifth paragraph of its answer, denied "that at all times while the engine on the main line was approaching plaintiff's intestate the distance of 200 yards or more the engineer in charge of the defendant's engine saw, or in the exercise of due care could have seen, that plaintiff's intestate was in a perilous position, and that said engineer, by exercise of due care, could have prevented and avoided killing plaintiff's intestate."In the argument here the plaintiff's counsel contended that the defendant, by the wording of the fifth paragraph of its answer, admitted that the plaintiff could not see the engineer on the approaching train or hear the approach of the train, because of his position amidst the escaping steam and noise of the engine on the side track; and that the plaintiff was really unaware of the approach of the train, and unable to see it.But the allegation...