Syme v. Richmond & D.R. Co.

• Decision Date: 24 October 1893
• Parties: SYME v. RICHMOND & D. R. CO.
• Court: North Carolina Supreme Court

18 S.E. 114

113 N.C. 558

SYME v. RICHMOND & D. R. CO.

Supreme Court of North Carolina

October 24, 1893

Appeal from superior court, Wake county; Brown, Judge.

Action by Andrew Syme, administrator etc., of Thomas Roberson deceased, against the Richmond & Danville Railroad Company for the death of his intestate. At the close of the evidence the court intimated that he would charge that plaintiff was not entitled to recover, whereupon plaintiff submitted to a nonsuit, and appealed. Affirmed.

A locomotive engineer, who sees a man on the track, going in the same direction as the train, is justified in assuming that he will step off, to avoid collision, when the danger signals are given; and the fact that a passing train on an adjoining track is making considerable noise does not render the engineer negligent in not attempting to stop his engine since it is the duty of a person on the track to look, as well as listen.

The following is plaintiff's evidence as to how deceased was killed:

"T A. Bowen: Live in the country. Work in Raleigh. I came in town by railroad track. Defendant's track is generally used as a walkway. I have been living where I now live six years. Great deal of walking done by public on defendant's track leading out of Raleigh to the west. The North Carolina Railroad track and the Raleigh & Augusta Air-Line track are eight or ten feet apart. Ties project about eighteen inches further. There is a ditch on side of track, and embankment runs up. Same on both sides. No pathway on either side of the tracks. The tracks of both roads are on one bed. Boylan's bridge spans both roads,--the North Carolina and the Raleigh & Augusta. The two tracks diverge, going east, after passing under the bridge. The deceased was killed forty or fifty yards west of the bridge. I saw the deceased when he was killed. The defendant's engine was coming from the North Carolina Railroad depot, going west. The tender was ahead, and engine backing. Roberson, the deceased, was going west. He had a bucket on his left arm. When Roberson was struck, there was a freight train on the Raleigh & Augusta track, passing along by the side of the deceased. I was fifty yards west of the deceased. I was coming to Raleigh, going east. Deceased was going west. The engine of the Raleigh & Augusta freight train was off against me, going west, when deceased was struck. Raleigh & Augusta train had fourteen or fifteen cars. Don't know exactly how many. I saw Roberson's face. It was towards me. He was walking briskly up the road towards me. The Raleigh & Augusta freight train was making considerable noise. When the engine and tender of defendant's struck deceased, it passed over him, and came nearly to a stop about thirty yards from deceased. You can't see the Raleigh & Augusta train from up the road until it comes under the bridge. When I first saw defendant's engine and tender, it was east of the bridge. From where engine and tender was when I first saw it, a man could see to where I was. The deceased was between me and the said engine. Don't think a person can see all the way to North Carolina Railroad depot from bridge. Distance from bridge to depot, 300 to 400 yards. A person on an engine on North Carolina road situated halfway between depot and said bridge can see to and under said bridge. It is possible to see a freight train from the Richmond & Danville depot from Hargett Street station to bridge. When I first saw Richmond & Danville engine and tender, it was thirty-five or forty yards from deceased, and had just got to bridge. From this point to where deceased was is open and straight, and Roberson could have been seen perfectly plain. The Raleigh & Augusta train was passing by deceased when Richmond & Danville engine struck deceased. The Raleigh & Augusta train had about half of it passed deceased. The freight train and engine and tender were running neck and neck. I waved my hand once or twice to deceased. He did not pay any attention to it. I don't know whether deceased stepped over from Raleigh & Augusta track or not. I heard the whistle of Richmond & Danville engine very plainly, and deceased was between me and engine. I motioned several times to deceased to get out of way, and he did not do so. There was plenty of room on the outside of Richmond & Danville or of North Carolina track for deceased to have stepped off. There was room on side of embankment and in the ditch, which was two feet deep. I stepped in ditch, and was not hurt. Engine passed me before it stopped. I was on same track as Roberson. If deceased had been on Raleigh & Augusta track, there was room on outside of that track for deceased to have stepped in, and saved himself. I heard whistle of engine of defendant blow twice, plainly. Engine had been slowed down before it struck deceased, because it stopped about thirty yards after it passed him, and after it passed me. Buck Howell was on same track, between me and Roberson. When engine blew, Howell also got off track, and so did I. Deceased did not. Both of us were further from Richmond & Danville or North Carolina engine than deceased. At the time Richmond & Danville engine blew, the Raleigh & Augusta engine was just about up in front of me. The train was passing Howell, and also deceased.

"George Davis: Live in the Fourth ward of Raleigh. Roberson was killed about 6:30 A. M. on October 9, 1891. I was ahead of him going west on North Carolina track. I saw freight train on Raleigh & Augusta track Was about 170 feet ahead of Roberson. Did not see deceased when he got on track, or when he was killed. I was going on up the road west. The Raleigh & Augusta train was going west. I heard engine on North Carolina track blow three times. It was then going west. I looked back, and saw nothing between me and the engine. I thought it was blowing for me to get off. I was right smart distance ahead of North Carolina engine. I am certain I saw no one between me and that engine. I stepped off on outside in ditch, and engine passed me. I got on track again, and looked back, and saw something on track. It was Thomas Roberson, dead. His whole body was between the rails. There was a hole in his head, and his foot cut off. His head was towards the east. The engine on the North Carolina Railroad did not stop. As it passed me, it was running fast,--thirty to thirty-five miles and hour. The shifting engine on the North Carolina track was going faster than Raleigh & Augusta freight train. When I started on the track, Thomas Roberson got on the track behind me, and I started in same direction that he did. From Boylan's bridge, and one hundred yards east of it a person could see straight ahead to Cox avenue, nearly three-fourths of mile. There was room on outside of North Carolina track to get off in ditch, just as I did. When

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