Stewart v. Southern Ry. Co.

• Court: North Carolina Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Stewart v. Southern Ry. Co., 128 N. C. 517, 39 S. E. 51 (N.C. 1901)
• Decision Date: 05 June 1901
• Parties: STEWART v. SOUTHERN RY. CO.

39 S.E. 51

128 N.C. 517

STEWART v. SOUTHERN RY. CO.

Supreme Court of North Carolina

June 5, 1901

Appeal from superior court, Davidson county; Bryan, Judge.

Action by J. J. Stewart, administrator, against the Southern Railway Company. From a judgment in favor of the defendant, plaintiff appeals. Affirmed.

Douglas J., dissenting.

Where plaintiff's intestate seated himself on the end of a railroad tie while acting as flagman, and, while asleep thereon, was struck by defendant's engine, the whistle of which had been sounded and the bell rung when the engineer discovered the deceased, and the brakes applied when it was seen the deceased did not move out of danger, a nonsuit was properly granted, as deceased was guilty of contributory negligence.

L. S Overman, for appellant.

Glenn & Manly, for appellee.

PER CURIAM.

We adopt the following opinion in this case prepared by the late Chief Justice FAIRCLOTH:

This is an action to recover damages for killing Julius Hargrove. The plaintiff's intestate was a flagman or brakeman on defendant's work train, and was an old railroad man, and knew the rules of railroads as to the passing of trains. The conductor of the work train stationed plaintiff's intestate at a point between Elmwood and the work train, to hear the freight train below, and to signal the work train out of the way of the freight train. The signal was given and, as the work train went out, the conductor said to him "Stay here until I return; will follow 74 [freight train] right back." The intestate knew and expected that train 74 would come by as soon as the work train was out of the way. He was then awake, sober, and in his right mind. Three hundred yards above the place where the intestate was injured, the freight train stopped to "fix a log," and could be seen that distance. The intestate was sitting on a cross-tie asleep, within a few inches of the iron rail. As the engineer of train 74 approached and saw a person sitting on the cross-tie, he assumed that he would get off, but on nearer approach, seeing that the person did not move, he gave the alarm signal by sounding the whistle, ringing the bell, and applying the brakes. The intestate was struck by the freight train, injured, and died soon afterwards. When the conductor saw that the intestate did not move, it was too late to stop before passing the intestate. The defendant introduced no evidence, and, when the plaintiff closed, his honor intimated that the plaintiff could not recover, and a nonsuit and appeal were taken.

In this and like cases the plaintiff's evidence is taken as true. The rule on this subject has been so frequently and recently expressed by this court that repetition seems to be superfluous work. However, in Norwood v. Railroad Co., 111 N.C. 240, 16 S.E. 5, the court said: "When he placed himself in a position where he was liable to be stricken by a passing engine, it was his duty to keep a sharp lookout; and if he carelessly, recklessly, and in a drunken stupor remained on the track when the engine was approaching, and till it came in contact with him, he was negligent. *** If it were conceded that the engineer saw the deceased walking along the track, or sitting upright on the end of a cross-tie, in time to have stopped the train without peril or difficulty, he was justified in believing up to the last moment, in the absence of knowledge or information that he was insane or deaf, that the intestate would take reasonable precaution for his own safety by moving out of the way,"--citing other decisions to the same effect, which decisions have been followed ever since. In Wycoff v. Railroad Co., 126 N.C. 1152, 37 S.E. 999, the facts were not identical, but were similar, and presented the same question. The plaintiff testified that he, being worried, stepped off, and sat on the end of a cross-tie to rest a few minutes, and while sitting there he dropped off to sleep, and was knocked senseless by a passing train. The court affirmed per curiam the nonsuit on the authority of Norwood's Case, supra. Affirmed.

DOUGLAS J. (dissenting).

I cannot concur in the opinion of the court. The answer alleges that "the said plaintiff's intestate deliberately, with a reckless disregard of his own safety, sat down upon the railroad track, and fell asleep"; and "that the engineer of said locomotive, when he saw a person sitting on the cross-ties, supposed that he would get off, and thus escape injury. As he approached quite close, and seeing that the person did not move, he gave signals of alarm by blowing the whistle and ringing the bell of the locomotive, thus endeavoring to warn the said person of the danger; and then, seeing that he did not move, the engineer applied the brakes, and did everything in his power to stop the engine, but it was too late." The fireman testified as follows: "Bob James was engineer. He blew whistle twice, and made one application of brakes, and came over on my side and asked if he hit that man. We had done passed." This clearly shows, what was practically admitted upon the argument, that the engineer neither blew the whistle nor gave any signal whatever until he was too close to the deceased to do any good. In the fateful words of the answer, "it was too late."

The opinion of the court seems to be based exclusively on the Cases of Norwood and of Wycoff, as those are the only cases cited. As the latter case was decided by a mere per curiam judgment, without setting forth either the facts or the law, it is a just precedent for neither. The facts in Norwood's Case were essentially different from those in the case at bar. In the former case it appeared from the evidence that the engineer kept a constant lookout; that neither he nor the fireman saw the deceased at any time; and that, owing to a curve in the track, it would have been impossible for the engineer to have seen him in time to have prevented the accident by stopping his train. There are in the opinion some unguarded expressions, in the nature of dicta, that have been construed to mean that the engineer had a right to presume, up to the last moment, that the deceased would get off the track, and that therefore there was no duty resting upon the engineer to give any warning whatever until the last moment, when, of course, it would have been too late. The mere statement of the proposition exposes its inherent falsity. That it was a mere dictum is shown by the fact that the engineer never saw the deceased, and therefore had no occasion for any presumption of any kind. If this was ever the meaning of Norwood's Case, it has been clearly overruled in Fulp v. Railroad Co., 120 N.C. 525, 27 S.E. 74, where Justice Furches, speaking for a unanimous court, says: "But the great error of the charge is that it is in violation of that great principle in favor of human life, so thoroughly settled in this state and in every jurisdiction, that the jury shall pass upon the acts of the defendant where negligence is alleged, and upon the contributory negligence of the intestate if that is alleged. This has not been done in this trial. We have shown that it has not been done as to sounding the whistle in a sufficiently intelligible way to be understood whether it was passed on or not." As it was necessary for the jury to pass upon the fact whether or not the whistle was sounded, there surely must have been some recognized obligation upon the defendant to sound the whistle. It is true, the whistle should have been sounded at the crossing; but it is equally true that Fulp's intestate was on the track 30 or 40 yards away from the crossing, and was never seen by the engineer, who did not know that he had struck him until the next day. If the defendant was liable for failure to below at a crossing because it might have aroused a man lying 40 yards down the track, of whose existence it had no knowledge, how much greater would seem to be its negligence when the deceased was in full sight of the engineer! I do not mean to say that in the case at bar the engineer should have stopped his train as soon as he saw the deceased sitting on the ends of the cross ties; but I do say that he should have given him timely warning by bell or whistle, one or both, as might be necessary. It would have taken but little trouble to have sounded the whistle, and would not have interfered in the slightest degree with the running of his train. Surely a human life is still worth something,--the pulling of a bell cord, the opening of a whistle. Where a human life is at stake that may be saved by the sounding of a whistle, then it is gross negligence--call this an expletive if you will--not to blow the whistle. Against the dictum in the Norwood Case, I would respectfully invite the attention of the court to the following authorities:

In Finlayson v. Railroad Co., 1 Dill. 579, 582, Fed Cas. No. 4,793, the court says: "In this case the uncontradicted evidence on both sides is that the man who was killed was walking on the track of the defendant corporation along the same course the train was going that struck and killed him; and the question arises what degree of precaution or care a railroad company or its servants are bound to take to guard against injuring a man under such circumstances. *** I instruct you that the agents of the railroad company had a right to suppose he was such a man, of sound mind and sound hearing, and that he would take reasonable care to protect himself in case of danger. Under that view of the case, I...