Ward v. Atlantic Coast Line R. Co.

• Court: North Carolina Supreme Court
• Writing for the Court: WALKER, J. (after stating the facts as above).
• Citation: Ward v. Atlantic Coast Line R. Co., 83 S.E. 326, 167 N.C. 148 (N.C. 1914)
• Decision Date: 05 November 1914
• Docket Number: 278.
• Parties: WARD v. ATLANTIC COAST LINE R. CO.

83 S.E. 326

167 N.C. 148

WARD v. ATLANTIC COAST LINE R. CO.

No. 278.

Supreme Court of North Carolina

November 5, 1914

Appeal from Superior Court, Columbus County; Allen, Judge.

Action by S. P. Ward, administrator of Noah Nobles, deceased against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Clark C.J., dissenting

The railroad track is a constant warning to a traveler that he is in danger, and he must maintain a lookout whether he be a licensee or trespasser.

A licensee upon railroad tracks cannot excuse his failure to look for a train which ran him down, on the theory that another engine nearby was exhausting steam and making a disturbance, and in case of injury no recovery can be had.

This action was brought by the plaintiff as administrator of Noah Nobles, to recover damages for the alleged negligent killing of his intestate. The facts are few and simple. The intestate, in broad daylight, was walking on the track of the defendant, known as the Conway branch, towards his home three miles away. He saw a freight train approaching and stepped from the main line onto the west side track, and continued on his journey. The passenger train had already passed by that place. The main track was used as a walkway by the people in that vicinity, and while it does not clearly appear whether the side tracks were so used, we will assume that they were. There were three side tracks at this point that is, between a crossing and the place where he was killed, all leading south towards Conway from Chadbourn. He was killed 200 or 250 yards from the passenger station at Chadbourn, at which latter place he had been talking with one of plaintiff's witnesses just a few minutes before, and then started for his home. He was in good health and had possession of all of his faculties--could see and hear well and had an unobstructed view of the approaching engine and tender which afterwards struck and killed him. The side track, on which he was walking at the time of the accident turns from the main track 50 yards below the crossing, and the place where he was killed is 350 yards from the point where the side tracks join the main track. Chas. Jolly, one of the plaintiff's witnesses, testified that he saw the engine and tender backing towards Noah Nobles about three minutes before he was killed.

"They came in on the main line and then went down to pull the train in. It had not gone down in the direction in which Nobles was killed until after Nobles had gone down. This train came in there from Conway. The mail train engine cut loose from the cars to go down to the coal chute after switching on the east side track. Then it came back on the main line and went on the other track going to the coal chute. There was another train along there where he was killed, a heavy freight train. That train was shifting on the yard there. It came in to the main line about the time Nobles was killed. It was right against where Nobles was killed."

He further said that he did not hear any signal by bell or whistle from the time the engine left the depot until the tender struck Nobles. There were overhanging limbs of trees near the track, but they did not obstruct the view. In regard to the trees he testified:

"Q. How far from the ground was the lowest limb of those trees? A. They were lower, I judge, than from here to the ceiling. I never measured them. An engine and train of cars could pass under it. You could see a train of cars coming from the east side. Q. If you were standing up here to the south of these trees and an engine was coming from the north, you could see it if you were on the track? A. Yes, sir. Q. The limbs would not obstruct your view from seeing it? A. No, sir."

There was a train on the main line which was shifting or exhausting steam and making a noise as the engine and tender approached deceased. The engine and tender "were rolling along slowly" and were stopped within 10 feet after the engineer learned that Nobles had been killed. He backed his engine to the place where the body was lying, and expressed regret that the accident had occurred. Fletcher Smith, plaintiff's witness, testified that there was nothing to prevent Nobles from stepping off the track, and that he could have seen the engine approaching him if he had looked. This witness saw him walking on the track just before he was killed. The engineer was in his place in the cab at the time of the accident, but there was no one on the front part of the tender. The killing occurred 80 or 90 yards from the crossing. Defendant introduced no evidence, and moved to nonsuit. Motion denied, and exception was duly taken. Verdict for plaintiff, judgment thereon, and appeal by defendant.

Davis & Davis, of Wilmington, and Schulken, Toon & Schulken, of Whiteville, for appellant.

D. J. Lewis, Irvin B. Tucker, and H. L. Lyon, all of Whiteville, for appellee.

WALKER, J. (after stating the facts as above).

It is impossible to distinguish this case, in respect to either its general or special features, from those in which we have held, upon a similar state of facts, that the railroad company is not liable; it being a case of damnum absque injuria. There are several of our cases precisely like this one in their facts, and to some of them we will advert hereafter. The principle we have adopted, and it has met with the concurrence of many other courts, whose opinions are entitled to the greatest respect, is that when a person is about to cross the track of a railroad, even at a regular crossing, it is his duty to examine and see that no train is approaching before venturing upon it, and he is negligent when he can, by looking along the track, see a moving train, which, in his attempt to blindly pass across the road, injures him. Even where it is conceded that one is not a trespasser, as in our case, in using the track as a footway, but has implied license, by reason of a custom in the neighborhood to so use it, it behooves him to be still more watchful. The license to use does not carry with it the right to obstruct the road and impede the passage of trains. A railroad company has the right to the exclusive occupancy of its track, and especially so when running its trains thereon, and its servants are justified in assuming that a human being, either a trespasser or one walking on it by implied license, who has the use of all his senses will step off a track before the train reaches him. This was said by Justice Avery in McAdoo's Case, 105 N.C. 140, 11 S.E. 316, and is well sustained by the authorities cited therein, viz., Bullock v. Railroad Co., 105 N.C. 180, 10 S.E. 988; 2 Wood on Railroads, § 333; Parker v. Railroad Co., 86 N.C. 221; 2 Wood on Railroads, § 320. A court of the highest authority has declared that, under such circumstances as those mentioned in the McAdoo Case, the track, as it seems necessary to repeat with emphasis, is itself a warning to those who may choose to use it as a walkway, even if it is customary for the people in the neighborhood to do so. It is a place of danger and a signal to all on it to look out for trains. It can never be assumed that trains are not on a track, and that there can be no risk to pedestrians from them. But the same has so often been the utterance of this court that the doctrine has become deeply imbedded in our jurisprudence, and is so just in itself and essential to the public convenience and safety that it would be most unwise to abrogate or even modify it. Public policy and common sense and ordinary prudence alike forbid such a course. The facts of this particular case bring it squarely within the control of that principle, and they so clearly point to the unfortunate negligence of the intestate as the active, direct, and efficient cause of his death that it would be a hopeless task even to attempt to differentiate it from those cases which have gone before it, and in which we have held, without variableness or the shadow of turning, that there is no negligence to be imputed to the railroad, but all of it is that of the party killed or injured while walking on a track, "in the broad and open day, in front of an approaching train or engine." We have said the precedents are numerous and this partial array of them will prove it. McAdoo v. Railroad, supra; Parker v. Railroad, 86 N.C. 221; Meredith v. Railroad, 108 N.C. 616, 13 S.E. 137; Norwood v. Railroad, 111 N.C. 236, 16 S.E. 4; High v. Railroad, 112 N.C. 385, 17 S.E. 79; Syme v. Railroad, 113 N.C. 538, 18 S.E. 114; Bessent v. Railroad, 132 N.C. 934, 44 S.E. 648; Stewart v. Railroad, 128 N.C. 518, 39 S.E. 51; Wycoff v. Railroad, 126 N.C. 1152, 37 S.E. 999; Sheldon v. Asheville, 119 N.C. 606, 25 S.E. 781; Beach v. Railroad, 148 N.C. 153, 61 S.E. 664; Lea v. Railroad, 129 N.C. 459, 40 S.E. 212. All of these cases have so thoroughly established the principle upon facts substantially identical with those in this record that it would seem to be doing something more than our duty or necessity requires to reiterate the doctrine. But the proposition, as having any application to this case, is earnestly contested, and we must therefore proceed to show how completely it fits, and in doing so a more extended reference to former decisions and the facts upon which they were based may be necessary, in order to show the exact analogy between them and the case at bar.

A railroad track, as was said in Beach v. Railroad, supra, is intended for the running and operation of trains, and not for a walkway, and the company owning the track has the right unless it 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 the former are considered superior to the latter. That private...