Wright v. Southern Ry. Co.

• Decision Date: 26 May 1911
• Citation: 71 S.E. 306,155 N.C. 325
• Parties: WRIGHT v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

71 S.E. 306

155 N.C. 325

WRIGHT v. SOUTHERN RY. CO.

Supreme Court of North Carolina

May 26, 1911

Appeal from Superior Court, Buncombe County; Councill, Judge.

Action by Wm. M. Wright against the Southern Railway Company. Judgment of nonsuit, and plaintiff appeals. Affirmed.

The court in determining the preliminary question whether there is any legal evidence to be submitted to the jury should adopt that construction of the evidence most favorable to the party introducing it.

This is an action to recover damages for personal injury, on the ground of negligence.

The defendant denies that it was negligent, and among other things alleges: "That the plaintiff's injuries were caused by his own negligence and want of due care in attempting to drive across defendant's railroad at its crossing, without looking or listening for defendant's approaching train, as it was his duty to do for his own safety. The defendant says that the plaintiff did not look or listen for the approach of defendant's engine or train as it was his duty under the circumstances to do, and that he could, had he looked and listened, have seen and heard the approach of defendant's engine in time to have placed himself out of danger; in fact, the defendant alleges that it did blow its whistle at the usual place for blowing for said crossing, about 300 yards from said crossing, while approaching the same, and that the plaintiff, as well as other persons, heard the same, and instead of remaining in a place of safety until after defendant's engine would pass said crossing, as it was his duty to do, he carelessly recklessly, and negligently, without due care for his own safety, violently whipped his horse, driving him and the buggy drawn by said horse across defendant's railroad track in front of defendant's approaching engine to a place of safety beyond, after which he recklessly and carelessly so drove said horse that said buggy in which the plaintiff was driving, at a distance of about 36 feet from the defendant's said railway and the crossing, struck a post, injuring said buggy and throwing the plaintiff therefrom, injuring the plaintiff thereby, without any fault or negligence on the part of the defendant or its employés who were running said engine very slowly, not exceeding 12 miles an hour, its engineer and fireman all the while fully complying with their duty by keeping a constant lookout ahead, and who did, as soon as the plaintiff approached said railroad track or crossing near enough to become dangerous apply the emergency brake and all the other appliances at hand and stopped said engine before reaching said crossing or just as it reached the same, without striking said horse and buggy of the plaintiff or the plaintiff himself. Had the plaintiff looked or listened before attempting to drive across said crossing, as it was his duty to do, he could have seen and heard said east-bound engine in ample time to have avoided the accident, but, in total disregard of his own duty, he carelessly and negligently attempted to drive his horse and buggy across defendant's railroad at said crossing, and in doing so struck his horse violently with the whip, thereby frightening him and causing him to run against the said post, injuring the plaintiff, if he was injured at all."

The plaintiff introduced a rule of the defendant, which reads: "Passenger trains in the same direction must keep at least ten minutes apart; freight trains fifteen minutes apart except when closing up at stations or at meeting or crossing points, except where block signals are used."

The following is the statement of facts and the evidence, taken from the brief of the plaintiff: "The defendant admits that on the 6th day of September, 1909, the plaintiff was injured in attempting to cross its track with his buggy, that plaintiff's horse became frightened by an approaching train, and plaintiff was thrown out against a post and injured. The plaintiff testified in his own behalf that on September 6, 1909, he was going towards Canton and had just passed a little branch and a freight train hove in sight coming from Canton; that he drove on, his mare in a slow trot, kind of cantering along. He did not see anything...