Treadwell v. Atl. Coast Line R. Co

• Decision Date: 20 October 1915
• Docket Number: (No. 223.)
• Citation: Treadwell v. Atl. Coast Line R. Co, 86 S.E. 617, 169 N.C. 694 (N.C. 1915)
• Court: North Carolina Supreme Court
• Parties: TREADWELL. v. ATLANTIC COAST LINE R. CO.

86 S.E. 617

169 N.C. 694

TREADWELL.

v.ATLANTIC COAST LINE R. CO.

(No. 223.)

Supreme Court of North Carolina.

Oct. 20, 1915.

Appeal from Superior Court, Sampson County; R. B. Peebles, Judge.

Action by Cork Treadwell, administrator of Henderson Treadwell, deceased, against the Atlantic Coast Line Railroad Company. From a judgment for defendant, plaintiff appeals. Reversed.

The action was brought to recover damages for the negligent killing of the deceased by the defendant's train, which, it is alleged, was running between Parkersburg and Garland, on the night of September 12, 1913. He had attended a revival at Garland that night, and went home from there in company with Lula Lamb. They walked on the railroad track from Garland towards Parkersburg about 2 1/2 miles, and then turned from the track to the east and walked to her home, where they arrived between 11 and 12 o'clock. They met a train, which was going south, on their way, about the time they left Garland. He left Lula Lamb's house for his own home across the railroad track about 12 o'clock the same night. He lived three-quarters of a mile from her home. He was found the next morning lying on the bottom of a ditch by the side of the railroad and between two railroad crossings, one of which was 100 yards from the place he was found and the other about a quarter of a mile distant. The distance from the track to the place where he was lying was about 12 feet, and his hat was on the railroad track, or at the end ofthe ties about seven steps from him towards Wilmington. It had rust on it, or something which was brown and had the appearance of rust. He was hurt when found and, while he was conscious, he was helpless and dazed, and could not tell how he was hurt. He had been struck on the shoulders, and later died of the wound. His coat looked as though something had caught it, and it was torn. When the doctor suggested that some one might have knocked him down to rob him, he said that he had a quarter in his pocket, which was found there. There was further evidence that two trains passed that point during the night, one at about 11:25 and the other some time later, about 3 o'clock, and that one of the trains had no headlight and gave no signal by bell or whistle for crossings. There was other evidence that the train had a headlight, but not an electric headlight. The track is straight from Garland to Parkersburg, and was used by pedestrians habitually. The court submitted four issues, and the jury found that the injury was caused by the defendant's negligence, to which the deceased had contributed by his own negligence, did not answer the third issue, as to the last clear chance, and assessed damages at $650. The court charged the jury that if defendant had no electric headlight on its engine, and that was the proximate cause of the injury to deceased, they would answer the first issue, "Yes, " and that there was no evidence that Henderson Treadwell was lying helpless on the track when he was struck, or that he was otherwise unable to care for himself; that if he went on the track and probably did not exercise ordinary care in looking out and listening for trains, they would answer the second issue, "Yes, " and that there was no evidence that defendant had discovered Treadwell on the track in a helpless condition, and if he was walking on the track, and they saw him, the engineer had the right to suppose that he would leave the track before the train reached him, and he was not, in such circumstances, required to ring the bell, or give him other signal. Judgment was entered for defendant on the verdict, and plaintiff, after properly reserving exceptions, has appealed to this court.

I. C. Wright and H. E. Faison, both of Clinton, and J. O. Carr, of Wilmington, for appellant.

Grady & Graham, of Clinton, for appellee.

WALKER, J. (after stating the facts as above). We have so recently, and with so much amplitude, discussed the principles of law relating to trespassers and licensees on railroad tracks, and applied them in so many different ways, it would seem that the subject had been well-nigh exhausted, and the rules pertinent to such cases had been finally and firmly settled. We shall not therefore "thresh this old straw" again, but content ourselves with a reference, though not a literal one, to two decisions of this court, where the doctrine has been traced from its origin through a long line of cases to the present time. Abernathy v. Railroad Co., 164 N. C. 91, 80 S. E. 421; Ward v. Railroad Co., 167 N. C. 148, 83 S. E. 326.

A court of the highest authority has said that, where it is known, as it should be, that a railroad company's right of way is being constantly used for its trains, and is at all times liable to be used for their running and operation in transporting freight and passengers, as a public carrier under the highest legal obligation to serve the public diligently and faithfully as such—

"the track itself, as it seems necessary to repeat with decided emphasis, is itself a warning. It is a place of danger, and a signal to all on it to look out for trains, and it can never be assumed that they are not coming on a track at a particular time when it is being used for the convenience of trespassers or licensees, and therefore, that there can be no risk to a pedestrian from them."

In the cases above cited, this court held, as it did also in Beach v. Railroad Co., 148 N. C. 153, 61 S. E. 664, that:

"A railroad track * * * is intended for the running and operation of trains, and not for a walkway, and the company owning the track has the right, unless [the statute] has, in some way, restricted that right, to the full and unimpeded use of it. The public have rights as well as the individual, and usually [and reasonably] the former are considered superior to the latter. That private convenience must yield to the public good and public accommodation is an ancient maxim of the law. If we should, for a moment, listen with favor to the argument, and eventually establish the principle, that an engineer must stop, or even slacken, his speed until it may suit the convenience of a trespasser on the track to get off, the operation of railroads would be seriously retarded, if not practicably impossible, and the injury to the public might be incalculable. The prior right to the use of the track is in the railway, [especially]* as between it and a trespasser who is apparently in possession of his senses and easily able to step off the track."

He has the advantage of the company's train and, besides, is using its property gratuitously for his own pleasure and convenience, and if he has implied license to do so, it must be considered as held, and the privilege must be exercised, subject strictly to the company's right to use its tracks for running its trains. If the engineers must stop their trains to await the pleasure or convenience of foot passengers in leaving tracks, when they can step off so easily and avoid injury and not obstruct or retard the passage of trains, the company cannot well perform its public duty as a carrier, and the public convenience, though superior and of prior right, must give way to private interests, contrary to the just maxim of the law. The railroad track itself was a warning of danger, made imminent by the approaching train. It was then his duty to keep his "wits" about him and to use them for his own safety. He knew, or ought to have known, that he was a trespasser, and it was his duty to have gotten out of the way ofthe train. The defendant was under no obligation to stop its train at the sight of a man on its track. It was apparent to the engineer in those cases, that the plaintiff was in full possession of his faculties and could take care of himself, and the engineer had the right to presume that he would leave the track in time to avoid the injury. That he did not do so was his own fault, and he should suffer the consequences of his folly.

The doctrine of the cases already cited and decided in this court has been firmly established in other jurisdictions, and notably in Railroad v. Houston, 95 U. S. 697, 24 L. Ed. 542, where it is said that a person using the track of a railroad company must look and listen, and any failure to do so will deprive him of all right to recover for any injury caused thereby. A party cannot walk carelessly into a place of danger, said the court in that case, and if he does, and is injured, he has himself alone to blame for the result. The cases in our courts also hold that neither the fact of an engine being on the south siding and exhausting steam, nor the speed of the oncoming train, which was not, in this case, at all excessive, can make any difference. Syme v. Railroad Co., 113 N. C. 558, 18 S. E. 114, McAdoo and High Cases, and Railroad v. Houston, supra. And many cases are there arrayed to show how well...