Sherrill v. Southern Ry. Co.

• Decision Date: 12 December 1905
• Citation: Sherrill v. Southern Ry. Co., 52 S.E. 940, 140 N.C. 252 (N.C. 1905)
• Parties: SHERRILL v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

52 S.E. 940

140 N.C. 252

SHERRILL v. SOUTHERN RY. CO.

Supreme Court of North Carolina

December 12, 1905

Appeal from Superior Court, Catawba County; Councill, Judge.

Action by A. H. Sherrill against the Southern Railway Company.At the close of plaintiff's case, the court directed a nonsuit, and plaintiff appeals.Reversed.

Plaintiff was employed by contract to construct a union depot for defendant and another railroad at a junction; his duty requiring him to work almost on the track, and frequently requiring him to be on and across it.While so engaged, he was run over by defendant's engine, which came upon him without giving the warning required by custom and rules of the company.Plaintiff had just looked both ways and listened without seeing any train on defendant's track, when he started to walk a short distance across the same, and within five or six seconds from the time he looked was struck and injured.Held, that plaintiff was not guilty of contributory negligence as a matter of law in failing to look a second time just prior to his stepping onto the track.

Civil action for personal injuries, caused by alleged negligence of defendant.The ordinary issues were raised by the pleadings.There was evidence tending to show that the plaintiff was at the time of the injury engaged in superintending the construction of a union depot at Helena, Ga., for the defendant and the Seaboard Air Line Railway Company.The tracks of the two railroads crossed each other at right angles, and the depot was being constructed in one of the angles and within a few feet of the tracks, and within the yard limits of the defendant at that point.The plaintiff's duties required him to cross and recross the defendant's track at frequent intervals in order to properly superintend the construction of the work.The depot which was being built had two fronts, one facing the track of the defendant, and the other the track of the Seaboard.The defendant's employés were accustomed to give warning of the approach of the trains at this point by sounding the whistle and ringing the bell, and the rules of the company required that adequate warning should be given.On the occasion when the plaintiff was injured, no warning of any kind was given, and the plaintiff, in endeavoring to cross the track, was struck by one of the defendant's trains and severely injured.The plaintiff, who was the only witness examined, speaking to the main features of the charge testified as follows: "I was setting door and window frames.After I got them set, I stepped across the Southern and walked up and down to see if the frames were level.There was a belt over the doors and windows, running around the whole building, and the frames had to be on line at the top.I stepped across and walked up and down the platform to see if these frames were on a line.I had to get off to do this and could not have done it properly any other way.The Seaboard train was standing across the Southern, and I walked to the side of the depot on the Seaboard line, and cautioned the men about letting blocks of timber fall from the building.I pulled out a piece of scantling 4X6 that had falled from the building and walked back across the Southern on to the platform, and gave a few steps, and the Seaboard train was then pulling out.I made straight back to my men.I don't think I walked over 15 feet.I walked straight to the men across the road, and the engine of the Southern caught me.I had no notice or knowledge of the presence of the engine until I was struck.I did not hear the ringing of the bell, nor a signal of any kind.It was not more than half a mintute.I looked and saw the Seaboard train, just started and was about stepping across the road.I don't think I walked more than 15 feet when the engine struck me.I cannot tell at what speed the engine was running.It was all done so quick I could not see.I was walking right fast.When I started down the Southern the last time, returning to my men I looked back and the Seaboard was on the crossing, moving off.I looked both ways and there was nothing there.I looked both ways and did not hear anything.I heard nothing.I heard the rumbling of no car and no whistle.I was using every precaution I could."On cross-examination he stated that, when he started down the Southern track the last time, he was 10 or 12 feet from the Seaboard track, and looked both ways.He then walked nearly 30 feet before he undertook to cross, or something like 20 feet, and did not look back again.He walked down the track and ...