Stanley v. Durham & N.R. Co.

• Decision Date: 06 April 1897
• Citation: 27 S.E. 27,120 N.C. 514
• Parties: STANLEY v. DURHAM & N. R. CO.
• Court: North Carolina Supreme Court

27 S.E. 27

120 N.C. 514

STANLEY v. DURHAM & N. R. CO.

Supreme Court of North Carolina

April 6, 1897

Appeal from superior court, Durham county; Coble, Judge.

Action by J. B. Stanley, administrator of the estate of J. T Stanley, deceased, against the Durham & Northern Railroad Company. Judgment for defendant, and plaintiff appeals. Reversed.

It was error to instruct that no recovery could be had for the death of a person killed while walking at night on a railroad track, along which the public were accustomed to walk, by being struck by a train, which carried no light and gave no signal, if he could have discovered the train by ordinary watchfulness and precaution, and by using his senses, since he was not required to be on the lookout for trains without lights and showing no signal.

F. A Green, J. W. Graham, and Boone & Bryant, for appellant.

L. R Watts, MacRae & Day, J. B. Batchelor, and Winston & Fuller for appellee.

MONTGOMERY J.

The plaintiff's intestate, in the nighttime, was walking along the defendant's track between Durham and East Durham, the public being accustomed to use the same as a walking way, when he was run down by the company's engine, which was moving with a box car in front, and hurt so badly that he died from the injury. The box car in front of the engine obscured the headlight so that the track was not lighted in front of the moving train. The testimony as to whether there was a watchman and light on the box car was conflicting and contradictory. The following issues were submitted to the jury: (1) Was the death of plaintiff's intestate caused by the negligence of defendant? (2) Was plaintiff's intestate guilty of contributory negligence? (3) Could the defendant, notwithstanding previous negligence of the plaintiff's intestate, have, by the exercise of ordinary care and prudence, avoided injury to him? (4) What damage is plaintiff entitled to recover? A part of his honor's charge was as follows: "If the jury should answer the first issue, 'Yes, that the defendant was guilty of negligence,' still this would not excuse the plaintiff's intestate from using ordinary care and due diligence with regard to his own safety. If he could, by the use of ordinary watchfulness and precaution, have discovered the approach of the car and engine in time to have gotten off the track and saved himself, and could have done so and did not, then he contributed to his own injury, and the jury...