Thompson v. Aberdeen & A. R. Co

• Decision Date: 19 November 1908
• Citation: 149 N.C. 155,62 S.E. 883
• Court: North Carolina Supreme Court
• Parties: THOMPSON. v. ABERDEEN & A. R. CO.

62 S.E. 883

149 N.C. 155

THOMPSON.

v.ABERDEEN & A. R. CO.

Supreme Court of North Carolina.

Nov. 19, 1908.

1. Trial (§ 165^*)—Nonsuit—Hearing.

On a motion for nonsuit, the evidence must be taken in its most favorable light to plaintiff and with the most favorable inferences the jury would be authorized to draw therefrom.

[Ed. Note.—For other cases, see Trial, Cent. Dig. § 374; Dec. Dig. § 165.*]

2. Railroads (§ 362*)—Injuries to Persons on Tracks —Running Without Headlight.

A railroad company is negligent in operating a train at night without a headlight.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 1249; Dec. Dig. § 362.*]

3. Railroads (§ 400*)—Injuries to Persons on Tracks—Evidence—Question for Jury.

Evidence, in an action for death, that a train was operated at a high speed, on a dark night, without a headlight, within an incorporated town, without any signals of its approach, was sufficient to go to the jury on the question of whether decedent's death resulted from negligence of the railroad company.

[Ed. Note.—For other cases, see Railroad's, Cent. Dig. §§ 1370, 1373; Dec. Dig. § 400.*]

4. Railroads (§ 367*)—Injuries to Persons on or about Tracks—Failure to Keep Lookout.

Where neither the engineer nor fireman saw a person when he was struck, there was negligence in not keeping a proper lookout, unless they were prevented from seeing by a failure of the railroad company to furnish a headlight.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 1258; Dec. Dig. § 367.*]

5. Railroads (§ 397*)—Injuries to Persons on or about Tracks—Actions—Evidence —Admissibility.

In an action for the death of a person on a railroad track, evidence that the track was habitually used as a way was erroneously excluded; it being stated that it would be followed by proof that this was well known to the railroad company.

[Ed. Note.—For other cases, see Railroads, Cent. Dig. § 1348; Dec. Dig. § 397.*]

Appeal from Superior Cour", Montgomery County.

Action by Richard Thompson, administrator, against the Aberdeen & Ashboro Railroad Company. From a nonsuit, plaintiff appeals. Reversed.

Morehead & Sapp and C. D. B. Reynolds, for appellant.

W. J. Adams, J. T. Brittain, J. A. Spence, and Adams, Jerome & Armfield, for appellee.

CLARK, C. J. Appeal from a nonsuit in an action for wrongful death. The evidence must be taken in the most favorable light for the appellant and with the most favor-able inferences the jury would be authorized to draw from it. Powell v. Railroad, 125 N. C. 372, 34 S. E. 530, and cases there cited. If there was any evidence tending to show that the death of the intestate was the result of the negligence of the defendant, it should have been submitted to the jury.

There was evidence that the plaintiff's intestate was seen at the defendant's station at Star about 9 o'clock at night drinking and eating peanuts; that a half hour thereafter a mixed train of the defendant came from the north, running at a high speed—30 or 40 miles an hour—with no headlight; that it was a dark night; that the engine gave no signals, before or after crossing a country road near the corporate limits, nor at a crossing a few hundred yards further north; that about daylight the next morning the deceased was found in a dying condition, 40 yards south of the crossing, in the corporate limits, with his head crushed, between the ends of the cross-ties, his hat torn, cut, and greasy, near him. His clothes were bloody on one side, and blood was on the ground between ends of ties, and there was evidence on his clothes and on the ground near him that he was eating peanuts at the time he was killed or shortly before. His skull was driven in, and there were cuts and bruises on other parts of his body.

The defendant was negligent in operating a train at night without a headlight. Willis v. Railroad, 122 N. C. 909, 29 S. E. 941. The evidence was sufficient to authorize a finding that the deceased was killed by the defendant's train. The uncontradicted testimony was that the defendant was operating its train, at a high speed, on a dark night, without a headlight, within the boundaries of an incorporated town, without giving any signals of its approach. The...