Tankard v. Roanoke Railroad & Lumber Co.
| Decision Date | 15 October 1895 |
| Parties | TANKARD v. ROANOKE RAILROAD & LUMBER CO. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Beaufort county; Boykin, Judge.
Action by George E. Tankard against the Roanoke Railroad & Lumber Company to recover the value of a mule. Plaintiff had judgment, and defendant appeals. Affirmed.
It was competent for a witness to use a diagram of the locality where the injury occurred, which he testified was a correct representation of it.
John H Small, for appellant.
Charles F. Warren, for appellee.
It was conceded by counsel on the argument, and appeared also from the undisputed testimony, that the defendant's car partially obstructed the crossing, but left about eight feet of the highway, covered by plank, unoccupied, and that there was ample room for plaintiff's servant to cross with his mule and cart. The defendant's counsel contended that the hole in which the animal's leg was caught constituted no part of the highway which it was the duty of the defendant to keep in safe condition. In passing upon the first issue which involved the question whether the injury was caused by the negligence of the defendant, the jury must have believed from the evidence that the hole into which the mule thrust his leg was located "at a place in the crossing over which one might ordinarily drive his team with safety," because, if they had believed it was situated outside of the highway, "at the end of the 16-foot plank, next to the rail, and over the slope or wash of the ditch, as defendant contended," it would have been their duty, acting under the very explicit instruction given them, to have responded in the negative instead of the affirmative to that issue.
The only question involved in the appeal as presented here is whether, in any aspect of the testimony, the defendant was warranted in insisting upon its right to present the question of contributory negligence to the jury. If the court below erred in holding and instructing the jury that there was no view of the evidence in which the culpable conduct of the plaintiff's servant might be found to be the proximate cause of the injury, the error consisted not in the submission of one instead of two issues, because it was the province of the court to determine whether one or both of the issues should be submitted, and the duty of the judge to adapt the instruction upon any phase of the evidence tending to show contributory negligence, either to one issue or both. Scott v. Railroad Co., 96 N.C. 428, 2 S.E. 151; Denmark v. Railroad Co., 107 N.C. 185, 12 S.E. 54; McAdoo v. Railroad Co., 105 N.C. 140, 11 S.E. 316. The controversy is, therefore, narrowed down to the single question whether there was any evidence of contributory negligence, and in passing upon it we must assume that all of the testimony offered for the defendant was true. It is admitted, therefore, that Sears, who was in charge of defendant's train and business, said, when Riddick drove up with his cart, "Hold on, old man; the boys will have this log on in a minute, and we will move on," and that thereupon the elder Riddick took the whip from his son, who was with him in the cart, and struck the mule, saying as he did so, "There's room enough." It must be admitted for the same reason that Riddick's son said to his father, "You had better not drive on; the mule is scary," and that the mule did become frightened at the car, and, in shying from it, stepped into the hole. If the facts admitted are conclusive evidence of contributory negligence, then it was the duty of the court to so tell the jury; or, if a reasonable mind could draw, as an inference from them, any conclusion of fact that would show a concurring culpability on the part of Riddick, it is the province of the jury to determine whether any such inference could be fairly deduced. It was legally incumbent on plaintiff's servant, the elder Riddick, to exercise ordinary care for the safety of the animal he was driving but he was warranted in assuming that the defendant had discharged its duty to the public by keeping the crossing in safe condition. Russell v. Town of Monroe, 116 N.C 727, 21 S.E. 550; Bunch v. Edenton, 90 N.C. 435. When, therefore, he drove up to the crossing, and saw that the space between the rear end of defendant's car and the end of the plank crossing was sufficiently wide to allow the cart to pass, he was no more culpable in attempting to cross without delay than are the hundreds of persons who, when there is no apparent danger of collision with a passing train, daily drive through openings between cars, left for the purpose, often in obedience to a town ordinance limiting the time of obstructing a street to five or ten minutes. When a train is approaching, it of course has the superior right to the use of its track as a public carrier (McAdoo's Case, supra); but the weight of authority and of reason is in favor of the proposition that persons in vehicles are not culpable for driving through a sufficient opening left between the cars that are standing across a highway, and that persons on foot are not negligent in climbing over the steps of such cars, though not under them, provided they exercise ordinary care to avoid collision with moving trains. Alexander v. Railroad Co., 112 N.C. 720, 16 S.E. 896; 2...
To continue reading
Request your trial