Osborne v. Norfolk & Western Railway Co. ( 1951 )

63 S.E.2d 147 (1951) 233 N.C. 215

OSBORNE
v.
NORFOLK & W. RY. CO.

No. 743.

Supreme Court of North Carolina.

February 2, 1951.

Higgins & McMichael, Winston-Salem, and Bowie & Bowie, West Jefferson, for plaintiff, appellant.

Craige & Craige, Winston-Salem, and Johnston & Johnston, Jefferson, for defendant, appellee.

ERVIN, Justice.

Inasmuch as he entered upon the railroad track of the defendant without license, invitation, or other right, the intestate occupied the status of a trespasser at the time of his fatal injury. 44 Am.Jur., Railroads, section 424; 52 C.J., Railroads, section 2105. Under the evidence, he was clearly guilty of contributory negligence which will preclude his administrator from recovering damages from the defendant for his death unless the facts warrant the application of the last clear chance or discovered peril doctrine. Long v. Norfolk & Western R. R. Co., 222 N.C. 523, 23 S.E.2d 849.

When recovery is sought of a railroad company for the death of a trespasser on its railroad track under the doctrine of last clear chance or discovered peril, the personal representative of the deceased trespasser must offer evidence sufficient to establish these four elements:

1. That the decedent was killed by the railroad company's train.

2. That at the time of his fatal injury, the decedent was down or in an apparently helpless condition on the railroad track.

3. That the operatives of the railroad company's train either actually saw, or by the exercise of ordinary care in keeping a proper lookout could have seen, the decedent in such condition on the railroad track in time to have enabled them, by the exercise of ordinary care, to stop the train and avoid the killing.

4. That the operatives of the railroad company's train failed to exercise such care, and thereby proximately caused the death of the decedent. Battle v. Southern R. R. Co., 223 N.C. 395, 26 S.E.2d 859; Long v. Norfolk & Western R. R. Co., supra; Justice v. Southern R. R. Co., 219 N.C. 273, 13 S.E.2d 553; Mercer v. Powell, 218 N.C. 642, 12 S.E.2d 227; Cummings v. Atlantic Coast Line R. R. Co., 217 N.C. 127, 6 S.E.2d 837; Draper v. Atlantic Coast Line R. R., 161 N.C. 307, 77 S.E. 231; Henderson v. Atlantic Coast Line R. R., 159 N.C. 581, 75 S.E. 1092; Clegg v. Southern R. R. Co., 132 N.C. 292, 43 S.E. 836; Upton v. South Carolina & G. E. R. R. Co., 128 N.C. 173, 38 S.E. 736.

When the testimony presented by the plaintiff in the court below is appraised at its full probative value, it is insufficient in law and logic to establish the second, third, and fourth elements set out above. As a consequence, the plaintiff is not entitled to invoke the last clear chance or the discovered peril doctrine, and the compulsory judgment of nonsuit must be

Affirmed.