Pickett v. Wilmington & W.R. Co.
| Decision Date | 19 November 1895 |
| Citation | 23 S.E. 264,117 N.C. 616 |
| Parties | PICKETT v. WILMINGTON & W. R. CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Duplin county; Hoke, Judge.
Action by William F. Pickett, administrator of Albert Williams deceased, against the Wilmington & Weldon Railroad Company. From a judgment for plaintiff, defendant appeals. Partial new trial.
Where a case hinges on a controverted allegation of negligence, the court may, in his discretion, submit one or more issues, with appropriate instructions.
A. D Ward and N. J. Rouse, for plaintiff.
W. R Allen and H. L. Stevens, for defendant.
The most important question presented by the appeal is whether the court erred in refusing to instruct the jury that if the plaintiff's intestate deliberately laid down upon the track, and either carelessly or intentionally fell asleep there, the defendant was not liable, unless the engineer actually saw that he was lying there in time, by the reasonable use of the appliances at his command, to have stopped the train before it reached him. In the headnote to Smith v. Railroad Co., 114 N.C. 729, 19 S.E. 863, 923, it seems that the intelligent reporter deduced from the opinion of the court the principle that, while the mere going upon the track of a railroad is not contributory negligence, any injury subsequently inflicted by a collision with a passing train is deemed to be due to the carelessness of the person who goes upon it, unless it is shown that he looked and listened for its approach. While such an abstract proposition may be fairly drawn from the reasoning upon which the opinion is founded, the new trial was in fact awarded, because the court below refused to instruct the jury that if the plaintiff's intestate was drunk, though he was lying apparently helpless upon the track, the defendant was not liable, unless its engineer actually saw that he was in danger in time to avert the injury by reasonable care. The learned counsel who argued this case for the defendant, without citing Smith's Case in support of his contention, obviously invoked the aid of the principle there decided when he rested his argument upon the proposition that one who carelessly or purposely falls asleep on a railway track is not only negligent in exposing himself upon first going there, but that, though he afterwards becomes utterly unconscious, there is, in contemplation of law, a continuing carelessness on his part up to the moment of a collision, which is, concurrently with the fault of the defendant, a proximate cause of an ensuing injury, or operates to acquit the carrier of what would have been culpable carelessness and a causa causans if the injury had been inflicted on a horse, a pig, a cow, or a person rendered insensible in any other manner than by drunkenness, or deliberately or carelessly falling asleep. So that we are again called upon to review Smith's Case, and to determine whether we will modify the principle there laid down, or extend its operation to other cases coming within the reason upon which it is founded.
The language of Judge Cooley which is cited in Clark v. Railroad Co., 109 N.C. 449, 14 S.E. 43, is that, "if the original wrong only becomes injurious in consequence of the intervention of the distinct wrongful act or omission by another, the injury will be imputed to the last wrong which was the proximate cause, and not to that which was more remote." If, in the case at bar, the plaintiff's intestate was in fault in lying down upon the track, and his carelessness culminated in doing so, then it is clear that the engineer was in fault in failing to keep a proper lookout if he could by doing so have seen the deceased in time through the reasonable use of the appliances at his command to have averted the injury, and his carelessness, of course, intervened after that of plaintiff's intestate. If he had looked and stopped the train, the collision would have been prevented, notwithstanding the previous want of care on the part of the boy who was killed.
In Herring v. Railroad Co., 10 Ired. 402, this court followed what was at the time the generally accepted doctrine,-that persons who went upon railroad tracks at places other than public crossings were trespassers, to whom the carrier owed no duty of watchfulness, and for whose safety it was in no wise liable, unless its engineer actually saw that there was danger of injury from a collision, and willfully refused to use means by which he could have averted it. In Gunter v. Wicker, 85 N.C. 310, this court gave its sanction to the principle first distinctly formulated in Davies v. Mann, 10 Mees. & W. 545, that "notwithstanding the previous negligence of the plaintiff, if, at the time the injury was done, it might have been avoided by the exercise of reasonable care and prudence on the part of the defendant, an action will lie for damages." This doctrine was subsequently approved in Saulter v. Steamship Co., 88 N.C. 123; Turrentine v. Railroad Co., 92 N.C. 638; Meredith v. Iron Co., 99 N.C. 576, 5 S.E. 659; Roberts v. Railroad Co., 88 N.C. 560; Farmer v. Railroad Co., Id. 564; Bullock v. Railroad Co., 105 N.C. 180, 10 S.E. 988; Wilson v. Railroad Co., 95 N.C. 93; Carlton v. Railroad Co., 104 N.C. 365, 10 S.E. 516; Randall v. Railroad Co., 104 N.C. 410, 10 S.E. 691. And it was repeatedly declared in those cases that it was negligence on the part of the engineer of a railway company to fail to exercise reasonable care in keeping a lookout, not only for stock and obstructions, but for apparently helpless or infirm human beings on the track, and that the failure to do so, supervening after the negligence of another, where persons or animals were exposed to danger, would be deemed the proximate cause of any resulting injury.
It was after all of these precedents following Gunter v. Wicker, supra, that the court in Deans v. Railroad Co., 107 N.C. 686, 12 S.E. 77, was confronted with the question whether a railway company was liable where, by ordinary care, its engineer could have stopped its train in time to prevent its running over a man lying asleep upon its track, under the doctrine of Gunter v. Wicker, or whether, the accident having occurred at a place other than a public crossing, the company could be held answerable, under the rule as stated in Herring v. Railroad Co., only where it was shown that the engineer actually saw the trespasser, and had reasonable ground to comprehend his condition. Upon mature consideration, the court overruled Herring's Case, and stated the rule applicable in such cases to be that "if the engineer discover, or by reasonable watchfulness may discover, a person lying on the track asleep or drunk, or see a human being, who is known by him to be insane or otherwise insensible to danger, or unable to avoid it, upon the track in his front, it is his duty to resolve all doubts in favor of the preservation of human life, and immediately use every available means, short of imperiling the lives of passengers on his train, to stop it." This rule was approved in express terms in Meredith v. Railroad Co., 108 N.C. 618, 13 S.E. 137; Hinkle v. Railroad Co., 109 N.C. 472, 13 S.E. 884; Clark v. Railroad Co., 109 N.C. 444, 445, 14 S.E. 43; Norwood v. Railroad Co., 111 N.C. 240, 16 S.E. 4; Cawfield v. Railroad Co., 111 N.C. 600, 16 S.E. 703.
In Smith's Case, supra, the same questions were again presented, and this court was asked to overrule the doctrine of Deans v. Railroad Co., and reinstate Herring v. Railroad Co. as authority. The court declined to overrule Deans' Case and others which had followed it, but held that in so far as the opinions purported to bring within the protection of the rule a person who is lying upon the track, in an insensible state brought about by drunkenness, they were entitled only to the weight of dicta. No member of the court adopted this particular view but the chief justice, who delivered the leading opinion. The other members of the court were either in favor of sustaining without any modification or of overruling in too, the principle as enunciated in Deans' Case. The learned counsel for the defendant now contends that one who deliberately incurs the risk of lying down upon the track is no more entitled to the protection of the law than a drunken person, and that, where he is killed, his personal representative cannot invoke the benefit of a rule which subserves the purpose of shielding even brutes from the same unnecessary peril. At common law, in England, the owner of cattle was required to keep them in or restrain them from trespassing on the lands of others. 2 Shear. & R. Neg. §§ 418, 626, 627. But in this country the rule has been either modified by statute or in a much larger number of states entirely disregarded, because the reason upon which it was founded, under different conditions, had ceased to operate. 2 Shear. & R. Neg. §§ 419-422. The principle deduced from Davies v. Mann, as is said by discriminating law writers, is that "the party who has the last clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it." 1 Shear. & R....
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