Russell v. Carolina Cent. R. Co.
| Decision Date | 21 April 1896 |
| Citation | 24 S.E. 512,118 N.C. 1098 |
| Parties | RUSSELL v. CAROLINA CENT. R. CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Union county; Timberlake, Judge.
Action by Cynthia Russell against the Carolina Central Railroad Company to recover damages for personal injuries received at a highway crossing. There was judgment for plaintiff. Defendant appealed. Affirmed.
While it is the duty of the trial judge to instruct the jury, when the evidence is conflicting, or more than one inference can be drawn from it, whether, in any given phase of the evidence, either party is guilty of negligence, yet he is not called upon, in the absence of special request, to instruct on every possible aspect of the evidence.
MacRae & Day, for appellant.
Frank I. Osborne, for appellee.
It is the duty of an engineer in charge of a moving train to give some signal of its approach to the crossing of a public highway over a railway track, or to a crossing which the public have been habitually permitted to use; and where he fails to do so the railway company is deemed negligent, and answerable for any injury due to such omission of duty. Hinkle v. Railroad Co., 109 N.C. 472, 13 S.E. 884; Randall v. Railroad Co., 104 N.C. 415, 10 S.E. 691; Gilmore v. Railway Co., 115 N.C. 657, 20 S.E. 371. On the other hand, it is ordinarily the duty of a person who is approaching a crossing of a railway track, though not at the time fixed by the schedule for the passing of any train to make diligent use of his senses, in order to discover whether there is reason to apprehend danger of a collision and the failure to do this usually constitutes contributory negligence; and where the injury might have been averted by taking such precaution the plaintiff cannot recover. But where a plaintiff does listen and look, and is induced to go upon the track because of the failure of the railroad company to give a signal at the usual place in approaching a crossing, the ensuing injury in case of a collision is attributed to the omission of the company to warn such person of danger, and not to his carelessness. Hinkle v. Railroad Co., supra. And even where the plaintiff exposes himself to danger, if he is induced to incur the risk because of the failure to sound the whistle or ring the bell at the usual place, the omission to listen and look is deemed excusable or not culpable, because he is misled by the conduct of the company. Alexander v. Railroad Co., 112 N.C. 729 734, 16 S.E. 896. A person is careless when he neglects to provide against danger that he has reasonable ground to apprehend, or against deleterious consequences that are the natural or probable result of his act. Tillett v. Railroad Co. (decided at this term) 24 S.E. 111. A person who drives up to a crossing in a town or city where it is the custom to close gates, so as to prevent the passage of vehicles when trains are approaching, and to open them when there is no danger, is not negligent if he drive through such gate, when open, without stopping to look or listen. The same rule applies where the company is accustomed to keep a sentinel on post to give warning of danger, and a person is induced to drive upon the track because the watchman is not on duty. The plaintiff had a right to expect that the company would not omit to give the usual alarm, and was not culpable for acting upon that supposition. Hinkle v. Railroad Co., supra.
The three issues are not in the form suggested and declared in Nathan v. Railroad Co. (decided at this term) 24 S.E. 511, to be ordinarily best. But this is not the ordinary case of negligence on the part of a defendant intervening as an operative cause of injury after the carelessness of a plaintiff.
The question whether the plaintiff had been thrown off her guard by the omission to give the signal was preliminary to, and very distinct from, the inquiry whether the engineer might by reasonable care, have discovered that she was in danger in time to have averted the accident, notwithstanding her previous carelessness. Here, if the jury believed that the plaintiff was induced to expose herself by the failure to give the alarm, it was their duty to find, in answer to...
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