Murphy v. Wilmington & Weldon Railroad , 70 N.C. 437 ( 1874 )

Settle, J.

The plaintiff alleges that he has been endam-aged'by the negligence of the defendant. We think that his losses are the result of his own carelessness, and if any one has a right to complain, it is the defendant.

The plaintiff inspected the ground and placed his wagon so near the main tract of the defendant’s road as to prevent the train from passing without striking the wagon, and his excuse for doing so, is that “ he thought there was room for trains to pass without striking his wagon,” Why then blame the company if its agent, the engineer, thought the same thing ?

But it seems that the engineer formed a more correct idea of the space at a distance, than the plaintiff did upon the spot, and immediately blew his whistle for the application of the brakes, and stopped his train as soon as he could. The brakes were such “ as are generally and universally used in this region of country.”

The case discloses no negligence on the part of the defendant, but great want of care on the part of the plaintiff.

It is more appropriate to say that the plaintiff has been the real and only cause of the mischief, than to say that he has contributed to it. He may congratulate himself that there is no complaint before the Courts of injury to the property of defendant, or to the persons of those travelling upon its road.

The judgment of the Superior Court is affirmed.

Pee Cueiam. Judgment affirmed.