Ray v. Aberdeen & R.R. Co.
| Decision Date | 10 April 1906 |
| Citation | 53 S.E. 622,141 N.C. 84 |
| Parties | RAY v. ABERDEEN & R. R. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Scotland County; Ferguson, Judge.
Action by J. C. Ray against the Aberdeen & Rockfish Railroad Company. From a judgment in favor of defendant, plaintiff appeals. Reversed.
Where one was rightfully upon a railroad track or sufficiently near it to threaten his safety, and was negligent and so brought into a position of peril, if the railroad by taking a proper precaution and keeping a proper lookout, could have discovered the peril in time to have averted the injury but failed to do so, it is responsible.
There was allegation and evidence tending to show that on or about December 26, 1900, the plaintiff was a passenger on defendant's train going to Aberdeen, N.C. About a half mile from Aberdeen the train was run onto a Y and backed in towards the depot, and at a point about 200 yards from the depot the train was stopped, and on a call from the conductor, "All off for Aberdeen!" the plaintiff and other passengers alighted, getting off at the rear end of the train. At this point there was no depot or waiting room and the defendant's track was some 30 feet from the track of the Seaboard Air Line Railroad. The track on which the defendant's train was then placed, and in the direction in which the same had been backing and towards the depot inclines gradually towards the track of the Seaboard road and the two tracks join some distance above the depot. It seems that this depot is used by both roads, but this is not clear from the statement of the case on appeal. A few moments after getting off the train, the plaintiff went down the road towards the depot, walking between the tracks of the two roads, and at a point near where the two roads joined, and where they were three or four feet apart, a train on the Seaboard track came, meeting the plaintiff, and being called to by some one on the Seaboard engine to jump for his life the plaintiff, in the effort to avert injury by the Seaboard train, sprang onto the track of the defendant's road and was struck and seriously injured by the defendant's train, which had backed down the road towards the depot, and in the same direction in which the plaintiff had been walking. No bell was rung or signal given by the train of the defendant which caused the injury, and no one was on the car or elsewhere to keep a lookout and warn a person or signal the engineer of danger, and the noise and smoke of the train on the Seaboard road was such that the plaintiff could not well note what was going on. At the close of the testimony, on motion of the defendant, the court dismissed the action as on judgment of nonsuit, and the plaintiff excepted and appealed.
J. A. Lockhart, E. H. Gibson, and W. H. Cox, for appellant.
U. L. Spence, for appellee.
HOKE J. (after stating the case).
Upon the foregoing facts the court is of opinion there was error in directing a nonsuit, and the plaintiff is entitled to have his cause submitted to a jury under proper instructions. It was a negligent act to back a train into a railroad yard where persons, passengers or others, were accustomed to stand or move about, either as of right or in the discharge of some duty, or by permission of the company, without warning of any kind and without having some one in a position to observe the condition of the track and signal the engineer or caution others in case of impending...
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