Royster v. Southern Ry. Co

• Decision Date: 15 April 1908
• Citation: Royster v. Southern Ry. Co, 147 N.C. 347, 61 S.E. 179 (N.C. 1908)
• Court: North Carolina Supreme Court
• Parties: ROYSTER. v. SOUTHERN RY. CO. et al.

147 N.C. 347

61 S.E. 179

ROYSTER.

v.SOUTHERN RY. CO. et al.

Supreme Court of North Carolina.

April 15, 1908.

Railroads—Injury to Person on Track-Contributory Negligence.

One who, knowing that a train is rapidly approaching only a short distance away, steps onto the track just in front of it, without having looked for it after passing around a car, is barred, by contributory negligence, from recovery.

[Ed. Note.—For cases in point, seeCent. Dig. vol. 41, Railroads, §§ 1305-1310.]

Appeal from Superior Court, Granville County; Webb, Judge.

Action by Harry Royster against the Southern Railway Company and the engineer on its train for injury from being struck by a train at a flag station.Plaintiff was nonsuited on the ground of contributory negligence, and appeals.Affirmed.

B. S. Royster and Winston & Bryant, for appellant.

F. H. Busbee & Son, for appellees.

BROWN, J.This is one of those hard cases which have been called the "quicksands of the law."A worthy man is injured in endeavoring to assist another, and yet under his own version of the facts we feel compelled, by a long line of precedents, to sustain the judge of the superior court in holding that he is barred from recovery upon well-settled principles of the doctrine of contributory negligence.The plaintiff testifies in substance that he lived at Bullock, and that his occupation was that of fixing a boiler at night, and that he is not in defendant's employment.On the night of January 23, 1907, he undertook to flag defendant's mixed freight and passenger train for one Davis; that he placed a lantern near the center of the track, the usual method used in flagging trains; that it was customary for the engineer of the approaching train to answer the signal by two short blows of the whistle and to ring the bell.After placing the lantern plaintiff returned to his work.He soon heard the train coming some 400 yards distant, running 40 or 50 miles an hour.It was pulling up a grade when he heard it.Plaintiff started for his lantern.He says he looked up the track for the train when about 12 feet from the lantern.After that he stepped behind a box car on siding, so as to place the car between himself and the approaching train."I stepped on the track just as the train was coming from behind the box car.I heard no station blow; saw no reflection.If train had a headlight, I did not see it.The top of the grade was about 400 yards from where I was, near the whistle post.The downgrade was heavy from that point to beyond my place."Plaintiff further says: "I heard the train coming, and I knew it was coming when I went on the track.It was a great deal nearer than I thought.I heard no blow of the whistle and no bell rung, and that was what fooled me.When I first heard the train, I thought it was coming up grade.From the whistle post to the depot is down grade.I knew all about the surroundings, about the station, and about the place.I kind o' trotted about 4 or 5 yards when I first left my boiler to where I could see the train.I saw no train when I quit trotting.I then went 4 or 5 steps and got behind the car, and then went to get my lantern, and got hit.I did not see the train.I saw no light in the fire box.The curve began about 50 yards from my lamp I think.The curve is on the same side as my boiler house, looking down the track towards Oxford.I went to the hotel in Clarksville, and was afterwards taken home.Just as I stepped on the track the engine hit me.It was about 100 yards from where I and Mr, Davis were to where the curve began.The lantern was down the track towards Clarksville from me.It was about 20 yards from my shed to the lantern.There were two box cars and a flat car on the siding.The flat car was to Oxford, and the box car was the last car I went around as I went to get the lantern.I could not see up the track in the direction from which the train was coming when I went around the car to get my lantern.I thought I would get my lantern and wave it a time or two and have them stop.Sometimes the engineer would see my lantern on the track, and sometimes I would get it off, and if the train had blown, I would not wave my lantern.I saw no reflection of the headlight that night."The plaintiff further testified that: "The headlight, if the train had one, would have thrown the light on my shed.I saw no reflection that night.The headlight would throw its beams 100 or 150 yards.I saw no headlight on the engine."These are the salient facts as given by the plaintiff himself.The doctrine of contributory negligence is founded upon the theory that negligence upon the part of some one sought to be charged with its consequences has been proven, and is based upon the general principle as stated by Mr. Justice Nelson: "A man is not at liberty to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he does not use common and ordinary caution to avoid it.One person being in fault will not dispense with another's using ordinary care for himself."Williamson v. Barret, 13 How. (U. S.) 109, 14 L. Ed. 68;Moore v. Railroad, 24 N. J. Law, 283.

The courts have universally held that persons entering upon a railway track, before doing so, must look and listen for approaching trains, and that a recovery cannot be had for an injury resulting from the lack of this common precaution.Cooper v. Railroad, 140 N. C. 213, 52 S. E. 932, 3 L. R. A. (N. S.) 1391, and cases cited.Upon the same principle it is held that trying to cross the track when a train is known to be due, and when...