Smith v. Norfolk & S.R. Co.
| Decision Date | 09 May 1894 |
| Citation | 19 S.E. 863,114 N.C. 728 |
| Parties | SMITH v. NORFOLK & S. R. CO. [1] |
| Court | North Carolina Supreme Court |
Appeal from superior court, Washington county; John Gray Bynum Judge.
Action by Martha Smith, administratrix of Joseph Smith, deceased against the Norfolk & Southern Railroad Company, for death of deceased, killed, while lying intoxicated on the track, by one of defendant's trains. Judgment for plaintiff. Defendant appeals. Reversed.
The trial court instructed the jury as follows: "There are four issues or questions for you to answer, as follows: (1) Was Joseph Smith killed by the negligence of the defendant? (2) Did the said Joseph Smith, by his own negligence contribute to his own death? (3) Could the defendant, by the exercise of reasonable care and prudence, have avoided the injury? (4) What damage, if any, is the plaintiff administratrix entitled to recover? As to which I lay down the law to you as follows: (1) Negligence is the omission to do some act or to perform some duty required by law to be done or performed, or the doing of the act or the performance of the duty in a careless and improper manner. (2) It is the duty of the defendant company to put competent men in charge of its trains. It is the duty of the engineer or fireman, in running the train, to keep a lookout in front of the train to see objects on the track in order to avoid accidents; and, if they fail to do so, this failure is negligence on the part of the company; and, if an injury results from a failure to keep this lookout, then company would be liable for it; and if you find the plaintiff's intestate was run over by the train of the defendant company, and killed, because of a failure of the officers in charge of and running the train to keep this outlook and see deceased lying on the track, it would be negligence; and you will answer the first issue, 'Yes.' (3) If you find the facts to be that, by reasonable diligence in keeping a lookout, the engineer could have seen the deceased lying on the track in time to have stopped the train before it ran over deceased, and he did not stop it, it would be negligence, and you will answer the first issue, 'Yes.' (4) The fact that the defendant did not have air brakes on the trains is not negligence. (5) It was the duty of the defendant to have sufficient brakes and appliances to have stopped the train in emergencies of this character in a reasonable distance; and, if you find that the brakes were not sufficient for that purpose, it would be negligence; and, if the deceased came to his death in consequence of this fact, you will answer the first issue, 'Yes.' (6) It is insisted by the defendant that the train was properly equipped and manned for trains after character of this, being a mixed train of passenger and freight cars. The plaintiff insists that two brakemen to fourteen cars was insufficient. This is a question for you. If you find from all the evidence in this case that two brakemen and the steam brake on the engine were sufficient to properly run the train and control it, then the failure to have more is not negligence; but if you find from all the circumstances growing out of this evidence, as you find it to be, two brakemen, the steam brake on engine, and the number of brakes you find were on this train were insufficient to properly run and control it, then the failure to have a sufficient number would be negligence in the company. (7) If you find that the train could have been stopped with the appliances with which it was equipped, after the deceased could, by reasonable diligence, have been seen, and it was not stopped, but ran over deceased, and killed him, it would be negligence, and you will answer the first issue, 'Yes.' (8) The question for you as to the outlook is not when the engineer did see the deceased lying on the track, but when he could, by the exercise of reasonable diligence, have seen him; and if he could, by reasonable diligence, have seen him in time to stop the train, but did not in fact see him in time to stop it, it would be negligence. (9) If you find the engineer kept a lookout and saw the deceased lying on the track as soon as he could have seen him, and immediately used all the appliances he could control in order to stop the train, and could not do so, it would not be negligence, and you will answer the first issue, 'No.' (10) If you answer the first issue, 'No,' you need not answer the others; for, unless the deceased came to his death by the negligence of the defendant, the plaintiff cannot recover. (11) If you answer the first issue, 'Yes,' I instruct you to answer the second issue, 'Yes,' if you believe the evidence in this case. (12) If you answer the first and second issues, 'Yes,' then come to the third. On this issue the same law is applicable that I have laid down to you as applicable to the first, and the facts that would constitute negligence under the first issue would constitute negligence under the third issue; so that if the facts proven satisfy you that the defendant was guilty of negligence, and you answer the first issue, 'Yes,' it will be your duty to answer the third issue, 'Yes."'
Though, by keeping a proper lookout on an engine, an intoxicated person lying on the track could have been seen in time to avoid killing him, recovery cannot be had, it having been impossible to prevent the accident after his discovery, as his negligence is concurrent with or subsequent to that of the engineer, and the proximate cause of the injury.
W. D. Pruden and W. H. Day, for appellant.
A. O. Gaylord, for appellee.
1. We are of the opinion that there should be a new trial upon the charge of his honor on the third issue. This issue was intended to present to the jury the principle of Davies v. Mann, 10 Mees. & W. 546, and the jury were instructed that the same law and facts which would constitute negligence under the first issue would be applicable to the third issue. The evidence upon the first issue tended to prove negligence on the part of the defendant by reason of its failure to keep a proper lookout in order to discover the deceased in time to avoid the accident, and also because of its failure to properly equip the train by providing sufficient brakes and brakemen. Now, as the doctrine of Davies v. Mann is based upon some omission of duty occurring after the negligence of the deceased (Gunter v. Wicker, 85 N.C. 312), which negligence was found by the court on the second issue, it is plain that there was error in blending these two essentially different elements of negligence,--the one existing prior, and the other occurring subsequently, to the negligence of the deceased,--and applying them indiscriminately to the third issue. We cannot know upon what phase of the testimony the jury acted in determining the question of negligence upon the first issue, and we have just as much right to assume that, under the charge of the court, they found that the negligence consisted simply in the failure to properly equip the train, as that they predicated it upon the alleged failure to observe ordinary care in keeping a reasonable lookout, etc. Under the first view, there can be no doubt that the finding upon the second issue would have barred a recovery; for if the engineer discovered the deceased as soon as he could have done so by keeping a proper lookout, and immediately applied all the means within his control to avoid the collision, and his failure to do so was by reason of the improper equipment of the train (an omission of duty which might have existed for weeks or months), then the negligence of the defendant would be no more proximate than that of the deceased, and there would be no ground whatever for the operation of the principle of Davies v. Mann. If this be not so, and the principle of that case is to be extended to negligence occurring both prior, as well as that which is subsequent, to the negligence of the deceased, it is perfectly useless to pretend that the doctrine of contributory negligence as to cases of this character has any place in the jurisprudence of this state. This inadvertence on the part of his honor (and such, alone, do we consider it) affords the defendant a clear ground of new trial, and this would be equally true if, as suggested, the third issue had been omitted, and the same instruction had been given on the first.
2. We are also of the opinion that there was error in ignoring that universally established principle in the law of contributory negligence which imposes upon one who has voluntarily disabled himself by reason of intoxication the same degree of care and prudence which is required of a sober person. This is so well established that it would seem unnecessary to cite authority in its support, but, as it appears to be questioned, we will reproduce a few extracts from some of the text-books, which are substantially repeated by every writer upon the subject. Mr. Wood, in his work on Railways (volume 2, § 1457), after stating that one cannot voluntarily incapacitate himself from ability to exercise ordinary care and then set up such incapacity as an excuse for his negligence, remarks: "The rule, therefore, is that the same care is required of a person when he is intoxicated as when he is sober, though, if the defendant is aware of his state before the injury, it is bound to exercise greater care to avoid inflicting any injury upon him." In Patterson's Railway Accident Law (page 74) it is said: "The fact that the person injured was intoxicated at the time of the injury will not relieve him from the legal consequences of his contributory negligence." In Bishop's Noncontract Law (page 513) it is said: ...
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