Smith v. Norfolk & S. R. Co.

• Decision Date: 09 May 1894
• Citation: 19 S.E. 923,114 N.C. 728
• Parties: SMITH v. NORFOLK & S. R. CO.
• Court: North Carolina Supreme Court

19 S.E. 923

114 N.C. 728

SMITH v. NORFOLK & S. R. CO.

Supreme Court of North Carolina

May 9, 1894

Dissenting opinion. For majority opinion, see 19 S.E. 863.

AVERY J. (dissenting).

I concur with the court in so far as the opinion adopts and approves the doctrine laid down in Deans' Case (N. C.) 12 S.E. 77, though the reasoning may not in all respects be in accord with my views. But I do not assent to the conclusion that railroad companies are relieved of liability for negligently killing a drunken man who is lying insensible upon the track, when, under exactly similar circumstances, a sober man, who had fallen asleep at the same place, would have the right to recover. I freely concede that the court has found abundant authority, and could have arrayed many more citations from text-books and decisions of other states, to sustain its conclusion, and justify the announcement that the dicta in a number of cases decided here should not be followed. But the same reasoning would warrant us in turning back the dial, and not only overruling such dicta as that companies must use air brakes on passenger cars, but many actual rulings based upon the idea that the definition of negligence under given circumstances is not fixed and immutable, but must be modified as we discover its want of adaptability to new conditions. But it is urged--First, that railway companies owe no such duty to a man whose sleep is due to drunkenness as to one who soberly and deliberately, yet carelessly, lies down on the track second, that in fact a drunken man, though sound asleep, is not excused by law for drunkenness, but is deemed to be willfully remaining on the track, and thereby co-operating consciously with the careless servant of a company in causing his own injury. Applying the harsh doctrine of the criminal law adopted and adhered to only in order to protect life person, and property from the consequences of fraud and violence, it is insisted that drunkenness is an aggravation rather than an excuse for carelessness as, for crime. But, as far as it is consistent with the public safety to do so, we find that the law follows the natural instincts of higher humanity, and protects, instead of punishing, these unfortunates when their weakness has made them victims and sufferers instead of criminals. The law lends its sanction to no such rule as that, where the conduct of a drunken man is neither criminal nor tortious, he forfeits any right or remedy to which he would be entitled if sober. Discussing this doctrine, then, as enunciated by Lord Penzance, and conceding the possibility of the existence of a precedent contributory negligence, which does not defeat recovery, as it would if concurrent with the negligent act of a defendant, the question arising here is whether the careless act of a drunken man, who is already asleep upon the track when the engineer first has opportunity to see and understand his condition, is guilty of concurrent contributory negligence. It is familiar learning that a deed or other written agreement executed by one so drunk as to be unconscious of what he was doing could be avoided even in a court of law under our former system. A contract, to be valid, must necessarily involve the intelligent assent of the mind of him who is to be bound by it; and it is for this reason that "total drunkenness is now held to be a complete defence" when an action is brought against him to enforce it. Morris v. Clay, 8 Jones (N. C.) 216; Cook v. Clayworth, 18 Ves. 12. "Where the intoxication rises to the degree which may be called 'excessive drunkenness,' where a party is utterly deprived of his reason or understanding when he enters into it," Justice Story says that "equity will relieve against it, because in such a case there can, in no just sense, be said to be a serious and deliberate consent on his part, and without this no contract or other act can or ought to be binding by the law of nature." 1 Story, Eq. Jur. § 231.

The negligence of a drunken man, who has been insensible for some time, is not to be distinguished from the suppositious case of a man who has fallen asleep on the highway (put by Parke, B., in Davies v. Mann, 10 Mees. & W., as giving a clearer right of action than the injury to the fettered ass), unless we concede by a fiction of the law the drunken man is deemed to be still concurring in taking the risk of exposure on the track, while the man whose sleep upon the highway is induced by other causes is held to have been guilty of precedent carelessness in going to sleep upon the track. If the learned baron correctly applied his own illustration, the negligence of a sober man who sleeps upon the highway is necessarily previous to that of him who drives over him after he is asleep. "An intoxicated man" (said the court of Connecticut by way of illustration in Isbel v. Railroad Co., 27 Conn. 393) "is lying in the traveled part of the highway, helpless, if not unconscious. Must I not use care to avoid him? May I say he has no right to incumber the highway, and therefore carelessly continue my progress regardless of consequences?" Referring to this high authority, Mr. Wood (2 Ry. Law, p. 1267, § 320) says: "The doctrine of this case has been approvingly cited by the courts in several cases, and seems to us to define the true rule of duty and obligation resting upon railway companies, as well as to persons lying upon their tracks, and young children, as to animals. The rule may be said to be that a railroad company is bound to keep a reasonable lookout for trespassers upon its track, and is bound to exercise such care as circumstances require to prevent injury to them. If a person seen upon the track is an adult person, and apparently in the possession of his or her faculties, the company has a right to presume that he will exercise his senses and remove himself from his dangerous position; and, if he fails to do so, and is injured, the fault is his own, and there is, in the absence of willful negligence on its part, no remedy." In the same section that author (page 1269), after citing the leading case of Railroad Co. v. Miller, 25 Mich. 279, quotes from the opinion of Chief Justice Christiancy as follows: "If, however, he, the engineer, sees a child of tender years upon the track, or any person known to him to be, or from his appearance giving good reason to believe that he is, insane or badly intoxicated, or otherwise insensible of danger, or unable to avoid it, he has no right to presume that he will get out of the way, but should act upon the belief that he might not or would not, and he should therefore take means to stop his train in time." Needham v. Railroad, 37 Cal. 409. Of course, numberless authorities can be cited against this position, and, if they are as reasonable as they are numerous, I would be constrained to yield to them.

From these authorities we gather the rules: (1) That it is the duty of railway companies to keep a reasonable lookout (at common law as well as where there is a statute); (2) that they owe this duty to trespassers upon the track as well as to others; (3) that if, by keeping this reasonable lookout the engineer discover a person that he knows to be, or has good reason from his appearance to believe to be, badly intoxicated, he must use all the means at his command to stop the train. These authorities, therefore, sustain our position in Deans' Case, Clark's Case, and others that have followed in the same line, using almost the identical language that we are urged to modify. It will be seen that it occurred neither to the supreme court of Connecticut nor to Mr. Wood (who is one of the fairest of...