Reid v. Atlanta & C. Air Line Ry. Co

• Decision Date: 28 November 1905
• Citation: 140 N.C. 146,52 S.E. 307
• Court: North Carolina Supreme Court
• Parties: REID . v. ATLANTA & C. AIR LINE RY. CO.

52 S.E. 307

140 N.C. 146

REID .

v.ATLANTA & C. AIR LINE RY. CO.

Supreme Court of North Carolina.

Nov. 28, 1905.

1. Railroads—Collisions at Street Crossing—Negligence.

A railroad company is negligent in backing an engine over a street crossing at night without any warning and without a man with a light on it to keep a lookout along the track.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, § 999.]

2. Same — Contributory Negligence—Last Clear Chance.

In an action against a railroad company for negligent death resulting from a collision on a crossing, the defense of contributory negligence was not available, where there was a negligent failure of its employes to avail themselves of the last chance of avoiding the injury.

[Ed. Note.—For cases in point, see vol. 41, Cent. Dig. Railroads, §§ 1096-1098.]

Appeal from Superior Court, Mecklenburg County; Cooke, Judge.

Action by James Reid, as administrator, against the Atlanta & Charlotte Air Line Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Civil action for wrongfully and negligently causing the death of plaintiff's intestate. The usual issues in such cases were submit-ted. There was evidence to the effect that on or about February 24, 1905, about 8 o'clock at night, the plaintiff's intestate was run over and killed by an engine of the defendant; and there was evidence tending to show that at the time of the killing the intestate was endeavoring to cross the railroad at Second street crossing in the city of Charlotte, that there were several tracks there used by the defendant in shifting and otherwise, that the street ran down these tracks for some distance, and it was usual and customary for persons who were passing over the crossing at this point to walk part of the way down the main line of the track, and the intestate was at such point at the time she was run over and killed. The evidence of the plaintiff tended further to show that, at the time intestate was killed, the engine was backed on the crossing and ran over the intestate without warning of any kind, without any light on the front end as the train moved, and without any one stationed so as to give warning if danger or collision was imminent. There was evidence of the defendant that at the time of the injury the bell was rung, a light was properly placed, and a lookout kept. Under the charge of the court there was a verdict and judgment for plaintiff, and defendant excepted and appealed.

W. B. Rodman, for appellant.

Pharr & Bell, for appellee.

HOKE, J. The charge of the judge below was full and clear. The jury have accepted the plaintiff's version of the occurrence, and there is no error presented which gives the defendant any just ground of complaint. The court in substance told the jury that, where an engine was backing on a crossing in the nighttime, it was the duty of the engineer to sound adequate warning and to keep a man with a light at the front of the engine as it was moving, so as to keep a lookout adequate for safety; and, if there was failure in this respect and an injury resulted, there would be a negligent breach of duty; and, if these duties were performed, there was no negligence on the part of the defendant, and the first issue would be answered "No." This is the rule laid down in Purnell's Case, 122 N. C. 832, 29 S. E. 953. There Furches, J., delivering the opinion said: "As we understand the matter, there must be both a man and a light at night, and a man and a flag in the day. It may be one...