Powers v. Norfolk Southern R. Co

• Decision Date: 23 September 1914
• Docket Number: (No. 17.)
• Citation: 82 S.E. 972,166 N.C. 599
• Parties: POWERS. v. NORFOLK SOUTHERN R. CO.
• Court: North Carolina Supreme Court

82 S.E. 972

(166 N.C. 599)

POWERS.

v.NORFOLK SOUTHERN R. CO.

(No. 17.)

Supreme Court of North Carolina.

Sept. 23, 1914.

Appeal from Superior Court, Cumluck County; Ferguson, Judge.

Action by Major Powers against the Norfolk Southern Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

J. Kenyon Wilson, of Elizabeth City, for appellant.

Aydlett & Simpson, of Elizabeth City, for appellee.

CLARK, C. J. This is an action for personal injuries. The plaintiff was struck by a train coming from behind him while on the defendant's track about 200 yards from Moyock Station on the night of February 4, 1912. There was a crossing at the station about 200 yards south and another about 300 yards north of the place of this occurrence. There was a curve between these crossings, and the plaintiff was at; the southern end of it. He had returned from Norfolk on the afternoon train and was drinking, but not drunk. It was cold, snowy, and the wind was blowing. The defendant was running its freight train around the curve some 25 or 30 miles an hour. There was evidence that the train was running without a headlight and without blowing the whistle for either crossing. The engineer and conductor testified that the whistle was blown and the headlight was burning.

The evidence that the track was habitually used by pedestrians was competent. McCall v. Railroad, 129 N. C. 298, 40 S. E. 67; Hord v. Railroad, 129 N. C. 306, 40 S. E. 69; and see citations to these cases in the Annotated Edition; Thompson v. Railroad, 149 N. C. 157, 62 S. E. 883.

There are many exceptions to the charge, but the appeal practically depends upon the correctness of the following paragraphs and the refusal of the instructions to the contrary:

"If the plaintiff was on the road of the defendant at a place other than the crossing, the defendant did not owe him the duty of sounding the whistle at the crossing because that requirement is for the protection of people who are traveling along the highway, and have as much right as the railroad company had in the use of the crossing. They have a right to cross the track, and if nothing else appeared, the plaintiff would not be entitled to recover. But the plaintiff says that not only did they not ring the bell or sound the whistle at the crossing, which if sounded would have given him warning, but that it had no headlight on its engine.

"(1) If the defendant was running its train without a headlight, it was guilty of negligence towards the plaintiff, and if he was injured in consequence, if he was exercising the care of a reasonably prudent man, the defendant would be responsible for the injury which he sustained (2)."

"(To that part of the charge between the figures (1) and (2) above the defendant excepted.)

"But if he could have heard the car or engine of the defendant's train approaching him and remained on the track when he could have gotten off of it, he would not be entitled to recover. That raises the question of contributory negligence and damages.

"But if you fail to find by the greater weightof the evidence that the defendant failed to have a headlight, or if the evidence preponderates in favor of the defendant that it had a headlight, an improved pattern, which was throwing light light along the road in the customary way, and the plaintiff did not take heed of the light, and was run over and injured, it would be an accident, and the plaintiff would not be entitled to recover. The plaintiff argues that if there had been a headlight on the train, he could have seen the light. If he had seen the light, the law presumes that a man walking on the track in normal condition would get off the track, and the engineer is not required to slow up his train, thinking that the man would get off the track, unless he thinks that the man has failed to notice his train; then it is his duty to stop his train if he can. If you find that the defendant had its headlight burning on the train, which threw the light so that the plaintiff might have seen it if he had been looking, it was...