Wilson v. Norfolk & Southern R.R. Co.
| Decision Date | 28 February 1884 |
| Court | North Carolina Supreme Court |
| Parties | W. L. WILSON v. NORFOLK & SOUTHERN RAILROAD COMPANY. |
CIVIL ACTION tried at Fall Term, 1883, of CURRITUCK Superior Court, before Avery, J.
The plaintiff claims damages alleged to have been occasioned by the running over and killing his mule by defendant's train. The issues submitted were, first, did defendant negligently ki??l the mule? and secondly, what was its value? The jury responded in the affirmative to the first issue, and fixed the value of the mule at one hundred and seventy-five dollars.
On the trial, the plaintiff testified in his own behalf that on the first of January, 1883, about 12 or 1 o'clock in the day, his mule got upon the defendant's railroad track and was killed by a train. A mule could be seen three quarters of a mile at the place where his mule was killed, the track being straight and the country open. Soon after the accident the witness went on the road and saw fresh tracks where the mule got on the road and where it ran down the road, about three hundred yards, to a culvert, and then turned and ran seventy-five or a hundred yards towards the train, and then back about forty feet. One of its legs was crushed, and there were indications that it had been dragged thirty or forty feet. On cross-examination, the witness stated among other things, that he did not see the accident--no curve in the road for three hundred yards--mule ran the length of twenty-eight rails, each thirty feet long, and ran off twenty yards from the track and back, where he was hemmed in--a train had passed, and the witness heard two sharp alarm whistles. On re-direct examination the witness stated the relative position of a fence, a ditch, and the railroad culvert. The testimony of the other witnesses for the plaintiff does not materially differ from that of the plaintiff himself.
The defendant introduced the engineer, who testified that on the day mentioned he was running the locomotive of a freight train, and discovered a mule standing on the crossing in plaintiff's field, near a culvert, about half a mile off. He shut off steam, blew on brakes, and rolled down to within a quarter of a mile of the mule, and then sounded “the cattle alarm,” when the mule walked off the track. The train then moved on at the rate of about fifteen miles an hour, when the engineer discovered another mule in the field, near the road, on the opposite side from the first mule, which was likewise driven off. The mule that was killed came suddenly and unexpectedly on the track about five steps ahead of the engine, and did not run along ahead of the train. When witness first gave the “cattle alarm,” the mule walked off the track into the field, and when it jumped back on the track the train could not have been stopped in time to prevent the accident. He was running at the usual speed, fifteen miles an hour, blew down brakes, and did all in his power to stop the train. Witness was vigilant, but did not suppose the mule would run back on the track after it had gone off.
The defendant asked the court to give the following instructions to the jury:
1. If the jury believe from the evidence that the mule went off the track, then the engineer was not required to anticipate its sudden return to the track, and was justified in proceeding with the train.
2. If they believe that, after leaving the track, it suddenly came back so near the front of the locomotive as to make it impossible to stop the train in time to avoid striking the mule, the company is not responsible for the injury.
3. If the mule had left the track the engineer had a right to proceed on his journey as upon a clear track.
4. It is not negligence in the railroad company or its agents merely because the engineer did not stop to see whether an animal near the track is coming on the track and may be killed.
5. If plaintiff fails to show negligence on the part of defendant or its agents, the company is not liable.
6. If the mule sprang upon the track only a few feet in front of the moving train, the company is not responsible for the accident, unless the train was being carelessly run.
7. If defendant could not have prevented the killing the mule after it was discovered on the track, then the defendant is not guilty of negligence.
8. A railroad company is not guilty of negligence because it does not stop its trains when persons are on the ground near the track; nor is there any greater deference due to live stock than to human beings.
The court declined to give these instructions, and charged the jury as follows:
This action having been brought within six months after the killing, if nothing further appeared but the fact that the plaintiff's mule was killed by the defendant company on its track, it would be prima facie evidence of negligence on the part of defendant, and the plaintiff would be entitled to recover the value of the mule. But there being testimony as to the circumstances attending the killing, the jury must determine, under the instructions of the court, whether the defendant is guilty of any negligence-- whether the defendant has rebutted the presumption of negligence. If the engineer saw the mule upon the track a quarter of a mile ahead, or could have seen it by proper watchfulness, running on the track, and could have stopped the train before reaching the point where the mule was killed, then the defendant is guilty of negligence, and the plaintiff is entitled to recover the value of the mule. If the engineer saw the mule that was killed a quarter or half mile ahead, and the mule left the track when the train was a quarter of a mile off, and the engineer had reason to believe that the mule was no longer in danger, and aftewards it ran upon the track in front of the locomotive, then the defendant is not guilty of negligence, unless the engineer could, by using the appliances at his command, have stopped the train after the mule jumped upon the track the second time, so as to prevent the killing.
The defendant excepted to the refusal of the court to give the instructions asked, and to those given; and appealed from the judgment rendered.
Messrs. Pruden & Bunch and W. B. Shaw, for plaintiff .
Messrs. Starke & Martin, for defendant .
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