Roseman v. Carolina Cent. R. Co.

• Decision Date: 09 February 1893
• Parties: ROSEMAN v. CAROLINA CENT. R. CO.
• Court: North Carolina Supreme Court

16 S.E. 766

112 N.C. 709

ROSEMAN v. CAROLINA CENT. R. CO.

Supreme Court of North Carolina

February 9, 1893

Appeal from superior court, Lincoln county; BYNUM, Judge.

Action by R. M. Roseman, administrator of Robert Murdock, deceased against the Carolina Central Railroad Company, to recover damages for negligently causing the expulsion of plaintiff's intestate from one of its trains on an inclement night, and while he was in a state of intoxication thereby exposing him to the injuries resulting in his death. Judgment for plaintiff. Defendant appeals. Reversed.

The conductor was not bound to act on the subsequent suggestion of a passenger as to deceased's condition, and so stop the train to pick him up, or to make inquiries of other passengers in that regard.

Following is the evidence material to an understanding of the opinion:

"Plaintiff's evidence: L. L. Smith: 'I knew Robert Murdock in November, 1889. Was staying at my house. Had been more than a year,--18 months. He had good habits. Character good for honesty and industry. Never been drunk at my house. Heard of his being drunk once. Was a healthy man. Never missed a day at my house on account of sickness. Was about 20 years old. I paid him $10 a month and board. I saw him November 16th a little before sundown. He left my house. Said he was going to Iron Station. It was a very cold, bad evening. Raining and sleeting. Night cold, rainy and dark. He saved his money well. Cross-examination: I live near Stanley's Creek. Farm and still. Deceased was a negro. He worked on farm. I had him to wait on people with the liquor. I paid him $9 or $10 that evening. Don't know whether he had any more money. Had been across home before with money. Don't know of his lending money. He bought a cow while with me, and carried to his father. My place is three quarters of a mile from Stanley's Creek. I sent him to sell whisky, after I found him to be trusty. I don't know that he measured any whisky that day. Whisky locked up. My wife had key. He felt his dram that evening. He got a quart that evening. Gave away half of it. Not more than a half hour from time he left me till train time. He had no children. Not married. Was black. Was raised in Lincoln county. Told me that he had worked for Rhinehart two miles from Iron Station. Deceased lived near Rhinehart's. I never sent him around to sell whisky, or to get orders for whisky.' Redirect: 'He was in my employ. Said, when he left, he would be back next evening.' I. C. Dellinger: 'I saw negro man at my house at Iron Station night of 16th. Saw him again next day, dead, lying in water. While passengers were eating heard a noise. Went to door. Darky there said he wanted pair boots. I slammed door. My little boy came in. Said boy was out there. Said he would shoot. Was cursing. In a few minutes, saw boy at window. When all got through eating went out with conductor. Boy was on porch. Asked him what he wanted. Said something to eat. I gave him something. He told me to get money out of his pocket to pay. Told him did not charge him. That last I saw of him. Was a wet, rainy night. Boy was drinking.' Cross-examination: 'Don't think it was raining while eating. Was 7 P. M. Train stopped 20 minutes. Began raining in 20 or 25 minutes after train left. I did not know boy that night. I said to conductor, while boy at window, "That boy not too good to shoot." I could not tell whether he was cursing or not. When I went out, he fell upon porch. When I gave boy something to eat, conductor had started to train. About minute from time conductor left till train left. Boy went right to train. Train on main track. Side track between main track and my house. Side track elevated 11 inches. One hundred feet distant. No lights but what I had, and conductor's. He walked brisk when he started to train. Something over 100 people in 3-4 miles. Dirt road down to railroad. Deceased's body found in direction of his father's home from Iron Station. His body something over 100 yards from one dwelling house; 200 or more from another; another, one quarter mile. Houses are scattered around. Body little over half mile from depot. Houses reaching up in direction of body from depot, within couple hundred yards of the body. Body 20 feet from railroad track. Head in a foot or two of dirt road. His father's house 2 miles from depot. Body about same distance. In going home from station, would go up the road. Saw no whisky on body. Found $8 in money. Saw no bruises on body. I looked to see. Railroad is level for a mile. Embankment 6 feet high where body found. Country level. Can see lights on railroad where body lying. No travel. Time of rain, water gathering in place. Don't think had been rain enough to gather water before dark. Water must have gathered after.' Cross-examination: 'Sidetrack 7 or 8 feet from main track. Lights in train. Road to Rhinehart's turnout, in edge of town, about 300 yards from depot. Could not see lights of town from where body lying. Don't know whether could have seen the nearest house. It was on other side of fill.' Julius Link: 'I found a colored man dead three quarters mile above Iron Station, about 20 feet from track, down fill. Public road ran there. Found it Sunday about 12 M. Saw body again several times. Saw it next day. John Murdock there. Did not know dead man.' John Murdock: 'Am father of Robert Murdock. Lynch come and told me he was dead. I found him dead in the section house at Iron Station. Lynch told me he was found dead on railroad. This was on Sunday. He was 20 years, 4 months, and 6 days old. Good habits. Hard working. Good health. Took care of his money. Brought it to me and his mother.' Cross-examination: 'Had been away from me 2 months. He worked out, some on railroad. My wife living. Deceased came once a month or so. Wrote to us. Sent us money. I have 9 children at home,--4 boys. I own no land. Have one cow that deceased bought. Have no horse or mules. He brought me one c$27. Had $9.10 when he died. Cant't tell how often he brought me money. I took the $27, and bought things to eat, and bought clothes for children. He was my mainstay.' J. A. Hoyle: 'I was on coroner's jury. Saw body before moved. Was three quarters mile from Iron Station, lying, head in few feet of public road. Feet in water. 26 feet from rails is a fill, there about 8 feet high. Water gathered at foot of fill. Come almost to his hips. Body on north side of track, about 200 yards to nearest house. I stepped it. It was on south side of track. Could not see house from where body lay. Next nearest house on north side one quarter mile. Don't think in wood. Rather, in a grove. Could not see lights of town from where the body lay. John Murdock lived on Lynch's land. To go there from where the body lay, would go road to about 200 yards of depot, and get in road. There is a path about 100 yards below where the body was. It was a cold, rainy, dark night. Began sleeting just before dark,--about sundown. Don't know whether it was sleeting after dark or not. We went up next morning. Saw no tracks in fill. Was a dent in fill, like he fell on head or shoulders, 8 feet from rails, at foot of fill. Bank of dirt not covered by water. Tracks on that, but nearer that. We looked for tracks. Did not find any.' Cross-examination: 'Did not know deceased. Did not measure dent or track. Don't know that he was on train. Can't swear that he made dent on fill or tracks. Tracks about length of man from body. I stayed 5 miles from Iron Station. Am not sure, but don't think could see any house from where body lying on railroad. Could see half dozen or more houses, and good many lights of Iron Station. Iron Station 7 miles from Stanley's Creek. Lincolnton 7 miles from Iron Station. No other stations.' W. H. Miller: 'I was on train Saturday night, about middle of November. Darky got on was put off. I first saw him at station. Then saw him on train. Saw him come in before train started. Took seat on arm of seat. Leaned over. Made noise like snoring. In a minute or so after train started, conductor come. Asked him if he had ticket. Said, "No." Asked if he had money. Put hand in vest pocket. Said, "No." Conductor said, "You will have to get off." Pulled the cord. Said, "Come out with me." Conductor started in front. Negro followed. Brakeman followed with lantern. Boy took hold of lantern. Brakeman said, "Let it loose." They went to rear of car, conductor standing in middle of car. Boy on left. Brakeman same side. Conductor said, "Let him get off by himself." I saw conductor all time. Did not see brakeman all time. Train started. Conductor came up to where I was--' (Here the plaintiff proposed to prove by the witness that just as the train moved off the conductor turned from the door, and came

to where the witness was, and that the witness said to him: "Captain, won't that negro freeze to death to-night?" To this evidence the defendant objected, and the plaintiff then stated that he offered this evidence for the purpose of showing notice to the company of the probable consequences to the negro by being put off. The objection of the defendant was overruled, and the evidence was admitted, and the defendant excepted.) Witness answers: 'After train started, got a little way, conductor came up to me. I said, "Capt., won't that negro freeze to-night?" He said: "Oh, no. He lives near here, and it is only a few hundred yards from the station." I think train was then between one quarter or one half mile from Iron Station. Boy got on front left-hand side of car. Had pair shoes. Sat about 3 seats from where I was, at front end. I went to negro. Said, "You are in wrong coach." He said, "I reckon not." He was drunk. The snoring or heavy breathing was before I spoke to him. Don't know whether he was sitting on arm of seat, or on

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