Scott v. Wilmington & W.R. Co.

• Decision Date: 25 April 1887
• Citation: 2 S.E. 151,96 N.C. 428
• Parties: SCOTT v. WILMINGTON & W. R. Co.
• Court: North Carolina Supreme Court

2 S.E. 151

96 N.C. 428

SCOTT v. WILMINGTON & W. R. Co.

Supreme Court of North Carolina

April 25, 1887

Appeal from superior court, New Hanover county.

In an action to recover for defendant's negligence, where the consequences of such negligence and of contributory acts on the part of plaintiff are not clearly distinguishable, and the trial judge deems the association between such acts so close as to involve both inquiries, and that the minds of the jury would be distracted from the merits of the controversy by having two separate issues, one as to the negligence and the other as to contributory negligence, he may direct only one issue; and as, in such case, defendant has all the advantages of two, he cannot complain.

Russell & Ricaud and J. D. Bellamy, for plaintiff.

Geo Davis, for defendant.

SMITH C.J.

The defendant's train of cars, while backing up on its track on Nutt street, in the city of Wilmington, came in contact with the horse and dray driven by the plaintiff, then in the act of crossing, whereby both his property and himself sustained serious injury, the redress of which is sought in this action. The testimony was somewhat conflicting as to the circumstances, the management of the train, and the conduct of the plaintiff when the collision occurred, and the degree of blame resting upon the parties, respectively, in causing it. The defendant's track, as shown by the diagram carefully prepared, and giving location of objects, and accurate measurements of distances, crosses Nutt street some 600 feet distant from the point, C, the place of the accident, passes from the street in a curve on the adjoining land, and again emerges into and proceeds along the street. Its course is marked by a broken red line, and intersects the worn pathway, designated by pencil line, which was used by draymen and others with vehicles to avoid passing over the railway at an oblique angle, and exposing them to danger from the wrench thus caused. From the point, A, the train could be seen on all of the curve except that part of the curve cut off by the broken dark line, A, B, prolonged, a distance of 150 feet; and, as the train was 280 feet long, a considerable part of it would still be visible to the observer. The plaintiff, however, had driven his horse towards the east side of the street, so that his view was obstructed by the warehouse on the map; and, when he moved on towards the crossing place at K, the rear and foremost car in the train was so near that, as he testified, he was unable to extricate himself from his perilous position and avoid the mishap. It was admitted that, as soon as the signal was given, the engineer did all he could to stop the train, but without avail. There was much testimony as to whether the bell was ringing as the train moved, or the whistle blown, to warn persons of the presence of danger, and whether there was any lookout on the train; and it seems to have been conceded that there was none, at the time, on the foremost car of the backing train. The testimony was conflicting as to the speed with which the train was going, and not in harmony in other particulars, but the foregoing brief narrative may suffice to enable one to understand the action of the court in the premises. The defendant denied any negligence in its own officers and servants, but relied mainly on the want of care and reasonable diligence in the plaintiff, by the exercise of which, as it alleges, the collision might have been avoided.

Two issues only were allowed to go to the jury, and these, with the responses thereto, are as follows: "(1) Was the plaintiff injured by the negligence of the defendant? Answer. Yes. (2) What damages did the plaintiff sustain? A $15,000."

The defendant, desiring to separate the negligence which is imputed to the plaintiff from that charged upon the defendant in causing the result, proposed to submit a third issue inquiring into the negligence of the plaintiff as contributing to the injury sustained, and this was refused, for the reason, as stated by the court, that it was involved in the first issue.

Special instructions were asked by the defendant, all of which, except the thirteenth refused, and the fourteenth modified, were given:

"(1) That the defendant was not bound to station a flag-man at the crossing, and the failure to do so was not negligence.

"(2) That the defendant was bound to no higher degree of care than the plaintiff was, and was bound to use only ordinary care.

"(3) That if the engineer in charge of the train saw the plaintiff, or his dray, on the track, he was not bound to stop the train, but had a right to presume that he would get out of the way in time to escape the danger.

"(4) That the defendant had a right to run its train backward if the exigence of its business required it, and it was not negligence to do so.

"(5) That if the train was running in the day-time at a low rate of speed, say five or six miles an hour, with a lookout on top of the cars, and the usual signals were given, by ringing the bell and blowing the whistle, then the defendant was not guilty of any negligence, and the plaintiff cannot recover.

"(6) That if the engineer in charge of the train neglected to ring the bell or blow the whistle, or omitted any other proper precaution, such neglect or omission did not relieve the plaintiff from the duty of making use of his senses of sight and hearing, and taking reasonable care for his own safety.

"(7) That it was the duty of the plaintiff, on approaching the railroad crossing, to be on the alert, to look along the line of the road, to listen, and to use every reasonable means to discover whether a train was approaching; and, if he failed to do so, he was guilty of neglect, and cannot recover if that negligence contributed to bring about his injury.

"(8) That if the plaintiff could have seen the train if he had looked, or have heard the whistle or bell if he had listened, in time to get out of the way, he was guilty of negligence, and cannot recover.

"(9) That the rule that where a person suddenly finding himself in a position of danger loses his presence of mind, and acts imprudently, he is not to be held responsible for it, does not apply to cases where the person has got into a position of danger by his own fault or negligence. And if the plaintiff could have seen the cars if he had looked, or heard the signals if he had listened, and was on the track with his dray, and, finding the cars approaching, in endeavoring to get his dray off the track pulled the wrong rein, whereby he prevented his horse from leaving the track in time to escape the danger, he was guilty of negligence, and cannot recover.

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