Wilson v. Atlantic Coast Line R. Co.

• Decision Date: 16 October 1906
• Citation: 55 S.E. 257,142 N.C. 333
• Parties: WILSON v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

55 S.E. 257

142 N.C. 333

WILSON v. ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina

October 16, 1906

Appeal from Superior Court, New Hanover County; Webb, Judge.

Action by C. D. Wilson against the Atlantic Coast Line Railroad Company, for an injury received by plaintiff at the crossing of defendant's tracks over Nutt street in the city of Wilmington. The issues of negligence, contributory negligence, and damages, the form of the first being "was the plaintiff injured by the negligence of the defendant?" were submitted to the jury, who found in plaintiff's favor, and assessed his damages. From the judgment thereon for plaintiff, defendant appeals. Partial new trial.

Error of a charge in authorizing the jury to find punitive damages without using the term, is not cured by the court, on being requested by plaintiff at the end of the charge to charge that plaintiff could recover punitive damages, saying that it would charge that punitive damages must not be allowed; the jury's attention not having been called to this as a correction of the charge.

Davis & Davis, for appellant.

Rountree & Carr, W. J. Bellamy, and W. Kellum, for appellee.

BROWN J.

The plaintiff was walking on Nutt street in the city of Wilmington, at a locality where many of defendant's tracks cross it leading to the wharves on the Cape Fear river, when he was run into by a car and knocked down and injured. There are no exceptions to the introduction of evidence, and the errors we are asked to review are confined to the charge of the court.

The evidence is very conflicting as to how the injury was occasioned, as to speed of the moving car, as to whether it was an attempt to make a running switch, and as to the vigilance of the flagman and the other servants of the company. There was evidence introduced by plaintiff tending to prove the crossing is a dangerous one; that there are some 15 tracks crossing Nutt street there; that trains and engines are constantly going in different directions at the same time on some of these tracks; that the street leads across these tracks to the Seaboard Air Line depot, and that there is much traffic and passing along it; that there are no gates to close when engines and trains are passing, and only one flagman whose duty it is to warn passers of the approach of trains. Plaintiff testifies that on January 16, 1905, he had crossed 13 tracks and was looking out for the cars; that he saw some up towards the bridge standing still; that he then looked toward the compress for cars on that track; that he continued to walk on, looking for cars, when he was hit by one unawares and badly injured; that the car was a flat car with no one on it; that Mr. Hankins, the crossing flagman, was in a little house 125 feet away and if he saw him he did not come to his rescue. Plaintiff also offered some evidence tending to prove that the flat car which struck him was a loose car which had been "kicked," in railroad parlance, from the train for the purpose of making a "running switch"; that the car was moving fast across Nutt street when it hit plaintiff and that "there was no one on it or near it and one witness said that there was no flagman at all." There was strong contradiction of this evidence by defendant's witnesses, but it is unnecessary to set out the tenor of their evidence. The defendant offered also evidence tending to prove contributory negligence upon the part of the plaintiff. It is not to be doubted that upon plaintiff's showing the defendant was guilty of negligence, and, in the absence of contributory negligence the plaintiff is entitled to recover damages. The attempt to make a running switch across a much-frequented street is not only a negligent, but a most dangerous and unwarranted operation, and has been so held by a number of courts. Bradley v. Railroad, 126 N.C. 735, 36 S.E. 181; Brown v. Railroad, 32 N.Y. 597, 88 Am. Dec. 353; Fulmer v. Railroad, 68 Miss. 355, 8 So. 517; Railway Co. v. Summers, 68 Miss. 566, 10 So. 63; French v. Railroad, 116 Mass. 537; Railroad v. Garvey, 58 Ill. 83; Railroad Co. v. Baches, 55 Ill. 379. It matters not whether the purpose was to "shunt" the car off on a switch or to give it force enough to roll along on the same track; it is negligence to permit a car to be "cut loose" and roll on uncontrolled by any one across a much-used crossing. The jury having taken plaintiff's version as the true one, there is sufficient evidence to uphold their finding on the first issue. Upon the issue of contributory negligence the evidence is conflicting. The evidence of the plaintiff, carefully examined, tends to prove that he was exercising all the care a man in his condition and circumstances could well exercise. There are a great many tracks along there, and the most prudent of men may get confused, but the plaintiff states how he looked, and where he looked, and it is evident from his statement he was doing all he could to safeguard himself. The plaintiff's evidence, if believed, abundantly justified the verdict of the jury. It is therefore our opinion that his honor properly overruled the motion to nonsuit.

It is not necessary that we should set out his honor's charge. It is very clear and comprehensive, stating with fullness and fairness the contentions of plaintiff and defendant, and then instructing the jury clearly as to the law upon the different phases of the evidence. At the close of the evidence the court gave certain instructions at request of plaintiff, and in the words of the prayer, which are excepted to. Among others he gave the following: "If the jury find from the evidence that the crossing along Nutt street, having 15 or more tracks upon which engines and cars were constantly shifting, was used by a very large number of people in the conduct of their business, then it was the duty of the defendant to furnish to persons desiring to cross the railroad at Nutt street, in the city of Wilmington, either on foot or with vehicles, a reasonably safe method of crossing, either by way of bridges, gates, an adequate number of flagmen or watchmen, or in some other way. That, even if the jury should find from the evidence that the plaintiff was negligent in not using ordinary care in looking and listening for approaching trains, still the jury should answer the first issue, 'Yes,' if they further find from the evidence that the defendant could have prevented the injury by the use of means at hand, or that it could have had at hand, by the use of reasonable care and diligence; and the fact that the plaintiff was deaf does not make him an outlaw, neither does it lessen the responsibility of the defendant company to warn him of approaching danger." The first objection made to this instruction is that it ignores the necessity for determining the proximate cause of the injury. Taken alone the criticism may be well founded. But the charge must not be taken in sections but as a whole. The jury had just been told in unmistakable terms that they must find "that such negligence produced the injury complained of,' and again, "that such negligence was the proximate cause of the injury," before they could answer the first issue, "Yes." We think his honor fully explained the doctrine of proximate cause, so as to leave no misapprehension in the minds of the jury. The other objection is by no means trivial. It relates to the words, "That the plaintiff was deaf does not make him an outlaw." We think the use of such language in the prayer for instructions unfortunate, to say the least; but we cannot think, when repeated from the bench, that the jury inferred that his honor was stating it to be his opinion that defendant had treated plaintiff as an outlaw. We do not place any such construction upon it, and we do not believe the jury did. The charge which preceded this particular instruction was so clear, fair, and impartial in its general tenor that we are sure the jury did not receive the impression that the judge was so hostile to defendant as to intimate an opinion that it was treating plaintiff as an outlaw. While it was not well advised in the court to have adopted such language, under all the circumstances, we do not think it necessitates a new trial on that ground.

Another prayer of plaintiff given and excepted to is as follows "That, if the jury find from the evidence that the defendant company was operating the train which injured the plaintiff in violation of an ordinance of the city of Wilmington, and that it did not have a man on the end of the car approaching the crossing, as required by said ordinance, then this alone is sufficient circumstance from which the jury may infer negligence on the part of the defendant, and to justify them in answering the first issue, 'Yes.' It is insisted that this instruction contravenes the rule laid down in Smith's Case, 132 N.C. 824, 44 S.E. 663, and Duval v. Atlantic Coast Line R. Co., 134 N.C. 331, 46 S.E. 750, 65 L. R. A. 722, 101 Am. St. Rep. 830, where it is held that running trains through cities and towns at a greater speed than is allowed by the municipal ordinances is some evidence of negligence to be submitted to the jury. The ordinance of the city of Wilmington, requiring that the railroad company shall have a man on the end of a car approaching this crossing, is an affirmance of the general law of the state. It did not declare anything to be law which was not already in force. In giving this instruction the court did not tell the jury that a violation of a city ordinance was per se negligence, but that the jury might infer negligence from the circumstance that no man was on the end of the car. This was substantially what the court had already charged, and the giving of this further instruction was unnecessary and harmless. It is true, in this...