Troy v. Cape Fear & Y.V.R. Co.
| Decision Date | 02 April 1888 |
| Citation | 6 S.E. 77,99 N.C. 298 |
| Parties | TROY v. CAPE FEAR & Y V. R. Co. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Cumberland county; WALTER CLARK, Judge.
Plaintiff showed that deceased, in walking on a trestle on defendant's road after dark, in the evening, where the public had been accustomed to walk for over 20 years, got his foot caught, and defendant's construction train, without headlight, whistle, or bell, came slowly up, and ran over him, and that the engineer had poor eyesight. Defendant showed that deceased was at the time intoxicated; that the public had no right there, a notice of "No admittance" being posted; and that the engineer was competent and trustworthy. Held, that an instruction that if the jury believe the evidence for plaintiff, and the uncontradicted evidence for defendant, deceased was guilty of contributory negligence, would be erroneous.
T. H Sutton, for plaintiff.
G. M Rose, for defendant.
Civil action, tried before CLARK, J., at May term, 1887, of the superior court of Cumberland county, to recover damages for the alleged negligent killing of Thomas McDonald, the intestate of the plaintiff. It is alleged and admitted that on or before the night of October 19, 1883. Thomas McDonald was run over while on the defendant's track in the town of Fayetteville. The plaintiff alleges that his intestate was walking on the defendant company's track, at the time of the injury, at a place where "it was, and for a long time had been, the habit and custom of the people of the town of Fayetteville, and others, to pass and repass and cross the track" of defendant's road, and that, while so walking on the said road, he was run over by the carelessness and negligence of the defendant's servants in charge of a locomotive engine, and received injuries from which he soon thereafter died. The defendant denies negligence, and says that the plaintiff's intestate was a trespasser, and had no right to be on defendant's track that he was a man of dissolute habits, frequently in a state of intoxication, was in that condition on the night of the injury, and was himself guilty of gross negligence in going on defendant's track in that condition, and that he was lying down, and in such a position that he could not be seen by the engineer, when the accident occurred. The following issues were submitted: Many witnesses, 30 in number, were examined on the trial below, and the substance of their testimony was sent up with the case on appeal. As there was no exception to any of the evidence by the appellant, we deem it unnecessary to set it out in detail, but only to state, substantially, so much of it as is necessary to a proper apprehension of the exceptions to his honor's charge. The tendency of the plaintiff on that behalf was to show that there is a crossing on a trestle of the defendant's road, upon which planks are placed, and that over this trestle the public have been accustomed to pass and repass for 20 or 25 years, using it as a common passage-way. That on the night of the 19th of October, 1883, between 8 and 9 o'clock, the plaintiff's intestate (McDonald) was crossing over the trestle, when the construction train of the defendant came into the town of Fayetteville, running slowly,--not faster than three or four miles an hour,--without giving any notice by sound of whistle or bell, and without any head-light. That it made so little noise that some of the witnesses thought that it was only a hand car. That it sounded no alarm at the crossing, and that no whistle was blown or bell rung from Little River to Fayetteville. That the track was straight for a considerable distance, and when the intestate saw the train approaching "he tried to get across the trestle, and could not, and then tried to get off, and got his foot hung." That he said he "saw the damned thing coming, and tried to get out of the way, but could not." That he made an outery and sound of distress, which could be heard at considerable distance,--according to one witness, 800 or 900 yards. That the train was going slowly, and could have been stopped within 10 feet. That, if the bell had been rung at the crossing, the intestate would have had ample time to have gotten off. One witness (Smith) testified that he heard the distressing cry, got a lantern and waved it; that, "if the engine had blown at the corporation limits, he would have had time to release McDonald; that he started as soon as he heard the outcry." That the engineer was incompetent, "blind in one eye, and could not see well out of the other." That the intestate was an industrious man, and a skilled laborer, worth one dollar per day. That he sometimes drank, but was not a drunkard. That he was sober at the time of the accident. That he was 55 or 60 years of age, and in good health. On behalf of the defendant, the evidence tended to show that the planks on the trestle were put there by defendant, not for public use, but for the employes of the road, when engaged about its business; that the defendant owned the property, and there was a public notice at the gate, "No admittance except on business;" that McDonald was inside the gate, was drunk on the occasion of the accident; that he was in the habit of going on the track intoxicated, and had been warned not to do so; that he was lying down; that, if he had been standing up, he could have been seen; that he himself said that, "if he had not been drinking, he would not have been caught there;" that he was drunk the evening of the accident,--so much so that he "could hardly keep his feet;" that Wright was a competent engineer, and had always been trusted. Wright, the engineer, testified that the head-light was burning; that he did not know whether the bell was rung or not; that, He afterwards said that the
The court charged the jury that as to the first issue, if the accident was caused by negligence of defendant, the jury should answer "Yes," otherwise "No;" and that the burden was on plaintiff to show negligence. That, if train was moving three or four miles an hour, defendant not being at a crossing, it was not negligence not to ring the bell or blow the whistle, unless such failure is shown to have contributed to the injury. Parker v. Railroad Co., 86 N.C. 222. It would have been negligence if there had been no head-light, since, by the uncontradicted evidence, the track was straight for half a mile; but, if there was a head-light, it was sufficient warning to deceased, and there could have been no negligence in failing to ring bell or blow whistle. That if the agent or engineer of company had notice, from the outcry or otherwise, that a human being was fastened on the track, it was negligence not to stop his train, if he had time to do so after receiving such notice; that is, if he received the notice at all. As to the second issue, the court charged, the failure of engineer to sound whistle or ring bell, if such were the fact, did not relieve deceased from necessity of taking ordinary precautions for his safety. Negligence of company's employes in that particular was no excuse for his negligence. He was bound to look and listen before attempting to cross the trestle, in order to avoid an approaching train, and not to walk carelessly into a place of danger. Had he used his senses, he might have heard or seen the coming train. If he omitted to do so, and walked thoughtlessly and carelessly on the track, he was guilty of culpable negligence, and contributed to his own injury. If he did use his senses, saw the train coming, or heard it, and yet undertook to cross the trestle, instead of waiting for train to pass, and was injured,...
To continue reading
Request your trial