Pusey v. Atlantic Coast Line R. Co.

• Decision Date: 23 March 1921
• Docket Number: 218.
• Citation: 106 S.E. 452,181 N.C. 137
• Parties: PUSEY v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

106 S.E. 452

181 N.C. 137

PUSEY v. ATLANTIC COAST LINE R. CO.

No. 218.

Supreme Court of North Carolina

March 23, 1921

Appeal from Superior Court, Sampson County; Connor, Judge.

Action by J. H. Pusey, administrator, against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. No error.

In action for death of occupant of automobile who was thrown out when car struck the rails of newly built track having no planks between, an instruction imposing duty on occupant to remonstrate with driver as to his speed, although he might not have known that driver was exceeding speed limit, was properly refused.

This is a civil action to recover damages for wrongful death alleged to have been caused by the negligence of the defendant.

Randall Pusey, plaintiff's intestate, together with Henry Vann and Festus Turlington, were going from Falcon to Fayetteville, riding in a Ford runabout, Vann being the owner and driver of the car. The public road upon which the plaintiff's intestate was traveling crosses the Atlantic Coast Line Railroad just above Wade station in Cumberland county at an acute angle. At the time of the injury complained of, August 29, 1914, the defendant company was constructing a new track, parallel to its original track, and about eight feet distant therefrom, the new track having been practically completed at the crossing referred to, except that the dirt had not been packed in guard planks laid down over the cross-ties as is always done when such crossings are completed.

The young men approached this crossing from the west side, passed over the old track, but when the wheels struck the rails of the new track they skidded, and the car was thrown something like 15 feet across the track to the point indicated on the plat, the front end of the car was reversed, and the three occupants thrown out, young Pusey being instantly killed.

The evidence was conflicting as to the rate of speed of the automobile at the time of the injury. Henry Vann, the driver of the car, testified that when he got on the track he was running from 6 to 10 miles per hour. He also admitted that he had been drinking cider, and other witnesses testified to the same effect.

The evidence showed that many automobiles had passed over the crossing on the day in question, that there was a camp meeting going on at Falcon, and that the cars going to and coming from Fayetteville had to pass over this crossing.

There were three issues submitted to the jury: First, as to the negligence of the defendant; second, as to the contributory negligence of the plaintiff's intestate; and, third, as to damages.

The jury answered the first issue "Yes," the second issue "No," and the third issue "$10,000."

The only exceptions in the record are based upon the charge of the judge to the jury, and his refusal to give certain instructions as prayed for by the defendant as follows:

"(1) The defendant contends that a passenger in an automobile which is being driven by another at a dangerous rate of speed, may be chargeable with negligence if he remains in the car and does not remonstrate with the driver, and that, if the jury should have found from the greater weight of the evidence in this case that Henry Vann was driving the car at a dangerous rate of speed, and that Pusey remained in the car and made no effort to stop him, and that such conduct on the part of Vann, acquiesced in by Pusey, contributed to the injury complained of, then the jury should have answered the second issue 'Yes,' and his honor erred in refusing to so charge.

(2) That his honor should have given the second prayer for instructions, to wit: 'If the jury shall find from the greater weight of the testimony that young Pusey was going to Fayetteville with Turlington and Vann on a pleasure trip, and that they were all engaged in a joint enterprise, either of business or pleasure, and if the jury shall further find by the greater weight of the evidence that Pusey trusted the management of the car to Vann, and that Vann drove the car at a dangerous rate of speed, or entered a dangerous zone or crossing at a rate of speed in excess of what would be prudent under the circumstances, and if the jury shall further find that the injury would not have occurred but for said conduct on the part of Vann, then I charge you that Pusey would be guilty of contributory negligence, and it would be your duty to answer the second issue "Yes." '

(3) That it was error to refuse to charge as requested as follows: 'I charge you that it is negligence on the part of a passenger if he commits his safety to an intoxicated driver of an automobile; and if the jury shall find from the greater weight of the evidence that Henry Vann was intoxicated or under the influence of intoxicating liquors and that this fact was known to young Pusey, and that Pusey continued his journey to Fayetteville under such circumstances, and if the jury shall find from the greater weight of the evidence that the injury complained of was caused by the intoxicated condition of Vann or if said intoxicated condition...