Redmon v. Southern Ry. Co.

• Decision Date: 23 June 1928
• Docket Number: 562.
• Citation: 143 S.E. 829,195 N.C. 764
• Parties: REDMON et al. v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

143 S.E. 829

195 N.C. 764

REDMON et al. v. SOUTHERN RY. CO.

No. 562.

Supreme Court of North Carolina

June 23, 1928

Appeal from Superior Court, Madison County; Deal, Judge.

Action by C. C. Redmon and another, administrators of the estate of James W. Redmon, deceased, against the Southern Railway Company. Judgment for plaintiffs, and defendant appeals. Modified and affirmed.

Last clear chance doctrine does not apply to trespassers and licensees on railroad tracks in apparent possession of strength and faculties, engineer of train having no information to contrary.

The evidence tended to show that plaintiff's intestate Redmon, was traveling in a Ford roadster truck on Bridge street, the car being a left-hand drive. Bridge street crossed the tracks of the railroad at grade. There is a North Carolina stop sign near the crossing, and the jail and a wholesale house are situated near the tracks. The jail is about 47 feet from the track and the wholesale house about 23 feet from the track. Redmon was traveling south. A witness for plaintiff, named King, was approaching the same crossing and was traveling in a truck behind Redmon. As the witness approached within 15 or 20 feet of the railroad track he attempted to pass Redmon and saw the train coming and stopped his car. Witness said:

"I came to a stop and looked back at Redmon's car to see if he was looking-I did not know at the time that he was starting across the tracks-and I turned my head and looked at the train again, and when I looked back at Redmon the train struck him. He was almost across the railroad tracks. *** The train was some thing like four rails from Mr. Redmon as he Went on the tracks. I think the regular railing is something like 30 or 33 feet. *** The train was running, I suppose, or making from 30 to 35 miles. *** No whistle was blown before that crossing was reached by the train that I heard of; no bell was ringing. *** The engineer did not make any effort to stop that train before striking Mr Redmon that I could tell, and at the time of this accident the engineer was not in the position usually occupied by the engineer. *** When I was within 25 or 30 feet of the track, I saw the train the first time at the upper bridge, I think, there. I don't remember how many steps it was, but it was something like 150 or maybe 175 yards. *** Redmon was closer to the track than I was, and, being ahead of me, he could have seen, for at that time his view was clearer than mine. *** I did not see him look; he was in front of me and he did not stop his car. He could have seen, at a point 25 feet from the track, a train approaching at 150 or 175 yards."

Witness Andrews, who was an eyewitness, testifying for plaintiff, said:

"I guess I could have seen up to the depot three or four yards when he got to the track. It was straight. The rails of the track are about 4 feet 8 1/2 inches apart."

Redmon's Ford truck was 10 or 11 feet long. Redmon, while at the hospital, told his son that "he did not see the train and did not hear any noise at all, and that he did not know he had been hit with the train until afterwards they told him." The collision happened about noon July 31st, 1926, and Redmon died as the result of his injuries on or about August 9, 1926.

The engineer testified:

"When I first saw Mr. Redmon approaching in his automobile, my train was about 125 yards when I first saw him; I guess he was about 30 feet from the railroad track, something like that. I was traveling about 20 or 25 miles an hour, and Mr. Redmon was traveling at a rate of speed of about 4 or 5 miles an hour, going very slow; he was going toward the crossing. When Mr. Redmon drove upon the track I guess I was within 40 feet of the crossing. When he started across in front of me from the time he drove upon the track 40 feet in front of me it was impossible for me to stop my train without hitting his car. *** My train was coming down the river, down grade, the river grade. My train of 60 cars consisted of, I think, 5 loaded and 55 empties that we had. The size engine I was driving that day was *** the largest on wheels; the largest type that is used."

Several witnesses testified that signals were given, and others testified that they heard no signal. The engineer testified that: "It takes one, two, or three seconds for the brakes to take hold." The engine was 90 feet long and the cars from 36 to 38 feet. There was no evidence as to the distance in which a train of this character and making the speed testified to, could have been stopped except the statement of the engineer that after putting on brakes he stopped about 150 yards from the crossing. A witness, Watson, who was a brakeman in the employ of the defendant at the time, apparently testified in a former trial that in his opinion a train going 45 miles an hour could be stopped within a distance of 100 to 150 yards, but the same witness modified the statement by saying that he had not run an engine, and was asked to give an estimate and stated:

"I can't give my opinion as to a train going 35 miles an hour; I don't mean I won't give it; I don't know; I have no opinion about it."

At the conclusion of the evidence the defendant tendered the usual issues of negligence, contributory negligence, and damages. The court, however, submitted an issue as to last clear chance, and the defendant excepted. The jury found that the defendant was guilty of negligence and that the plaintiff was guilty of contributory negligence, and further found the issue of last clear chance in favor of plaintiff, and awarded damages in the sum of $3,500.

From judgment upon the verdict, the defendant appealed.

Thomas S. Rollins, of Asheville, for appellant.

John H. McElroy and Charles B. Marshburn, both of Marshall, and Mark W. Brown, of Asheville, for appellees.

BROGDEN J.

When must the trial judge submit an issue of last clear chance to the jury? The last clear chance doctrine is the duty imposed by the humanity of the law upon a party to exercise ordinary care in avoiding injury to another who has negligently placed himself in a situation of danger. The doctrine is said to have sprung from the celebrated case of Davies v. Mann, 10 M. & W. 546, decided in 1842, and is commonly known as the Hobbled Ass Case. An excerpt from that case is as follows:

"The defendant has not denied that the ass was lawfully in the highway, and therefore we must assume it to have been lawfully there; but even were it otherwise, it would have made no difference, for as the defendant might, by proper care, have avoided injuring the animal, and did not, he is liable for the consequences of his negligence, though the animal may have been improperly there."

The principle announced has been clearly stated by Stacy, J., in Haynes v. Railroad, 182 N.C. 679, 110 S. E. 56, as follows:

"It has been held uniformly with us that, notwithstanding the plaintiff's contributory negligence, if the jury should find from the evidence that the defendant, by the exercise of ordinary and reasonable care, could have avoided the injury, and failed to do so, and had the last clear chance to so avoid it, then the defendant would be liable in damages."

To the same effect is the utterance of Brown, J., in Cullifer v. Railroad, 168 N.C. 309, 84 S.E. 400:

"It is well settled in this state that where the plaintiff is guilty of contributory negligence the defendant must exercise ordinary care and diligence to avoid the consequences of the plaintiff's negligence, and if by exercising due care and diligence the defendant can discover the situation of the plaintiff in time to avoid injury, the defendant is liable if it fails to do so."

Again, in Ray v. Railroad, 141 N.C. 84, 53 S.E. 622, Hoke, J., said:

"The authorities are to the effect that if the plaintiff is at the time rightfully upon the track or sufficiently near it to threaten his safety, and is negligent, and so brought into a position of peril, if the defendant company by taking a proper precaution and keeping a proper lookout could have discovered the peril in time to have averted the injury by the exercise of proper diligence, and negligently fails to do it, the defendant would still be responsible, though the plaintiff also may have been negligent in the first instance."

The application of the principle was denied in Herring v. Railroad, 32 N.C. 402, 51 Am. Dec. 395, although the case of Davies v. Mann was cited in the brief. The Herring Case involved the killing of a slave who was asleep on or near the track and not at a crossing. Justice Pearson observed:

"If both are in equal fault, if one can recover so can the other, and thus there would be mutual faults and mutual recoveries, which would contradict the saying 'that law is the perfection of reason."'

The Herring Case, however, was overruled in Deans v. Railroad, 107 N.C. 686, 12 S.E. 77, 22 Am. St. Rep. 902. The Deans Case expressly adopted and applied the principle of Davies v. Mann.

The legal basis of the principle has created a wide divergence of opinion among text-writers and courts of last resort. In Neal v. Railroad, 126 N.C. 634, 36 S.E. 117, 49 L. R. A. 684, it was held that last clear chance and proximate cause are synonymous terms, the court saying:

"The doctrine of proximate cause-the 'last clear chance'-is firmly established in this state, and we have no idea of abandoning or in any way disturbing it."

In the Neal Case an issue as to last clear chance was submitted, but the trial judge nonsuited the case, even though the train at the time of the injury was running in violation of ordinances regulating speed and the ringing of the bell. The court said:

"The distinction does not seem to lie so much in the negligence of the parties, where both are

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