Morrow v. Southern Railway Co. , 147 N.C. 623 ( 1908 )

WaleeR, J.,

after stating the case: The defendant excepted to the amendment of the instruction and insisted that it should have been given as it was asked. In this view we concur, .and think the Judge erred in so modifying the instruction as to make its application to the case depend upon the presence of a headlight. It was clearly .the duty of the defendant to run-its train in a prudent manner and with such appliances which are approved and in general use, as a headlight, as will enable persons on its track to know of the approach of the train, if they exercise due care by looking and listening. If the train is so operated that it cannot be seen or heard in time for persons on the track, not ,at a crossing, to escape therefrom and avoid injury,' then the defendant’s engineers should give such signal by bell or whistle, and sometimes perhaps by both, as may be reasonably sufficient to warn persons on the track of the approach of the train. Edwards v. Railroad, 132 N. C., 99.

The duty of the railroad company is to give reasonable and proper warnings for the protection of travelers on a highway when trains are approaching, and a traveler may be said to have the right to presume that this duty will be performed, but this does not discharge him from the duty to exercise care for his own safety. If the defendant fails to give such signals as the circumstances reasonably require to warn a traveler on a highway which crosses the track, and the latter is injured by reason thereof, and has not proximately contributed to his own injury by failing to look and listen, or, in other words, to exercise the care of a prudent man, there is actionable negligence, and be may recover for tbe injury. Tbe warning should, of course, be given at a sufficient distance to be effectual for tbe purpose intended. 9 Am. and Eng. Enc., 413. Tbe omission to give tbe signal at a crossing does not, as we have stated, relieve tbe traveler on tbe highway of tbe duty, as a prudent man, to look and to listen.” Cooper v. Railroad, 140 N. C., 209. “Both parties are charged with tbe mutual duty of keeping a careful lookout for danger, and tbe degree of diligence to be used on either side is such as a prudent man'would exercise under tbe circumstances of tbe case in endeavoring to perform this duty.” Improvement Co. v. Stead, 95 U. S., 161. But it is held, as we think, by tbe great weight of authority that tbe duty to give signals near crossings of tbe approach of trains does not exist in favor of persons walking along tbe track or parallel with and dangerously near tbe same, when such pedestrians are on or near tbe track between tbe crossings; and tbe failure to give crossing signals, as to them, is not negligence per se, but is only evidence of negligence in proper cáses. Tbe principle will be found stated with clearness in 8 Am. and Eng. Enc. of Law, pp. 409, 410, tbe cases being collected in tbe notes. A person walking on a railroad track or so near thereto as to be in danger of being struck by a passing train cannot complain of any breach of duty which tbe railroad company did not owe to him. Travelers on a highway which crosses a railroad track have tbe right to use tbe highway, and are therefore entitled to notice of tbe approach of trains to tbe crossing, but pedestrians using tbe track as a walkway cannot claim that tbe same duty of giving warning near crossings .is due to them, for they are not using tbe highway. Randall v. Railroad, 109 U. S., 478. But tbe fact that no such warning was given, while not negligence per se as to tbe pedestrian using tbe track for bis own convenience, may be evidence of negligence as to him in tbe operation of tbe trainj when it is run in tbe nighttime without a headlight, and prudence requires a warning to be given. There was evidence in this case that tbe plaintiff, when be was injured, was where people in the vicinity were accustomed to walk, and under the circumstances he was entitled to notice of the approach of the train, if there was no headlight and it was so1 dark that he could not see it in time to leave the track. Purnell v. Railroad, 122 N. C., 832; Heavener v. Railroad, 141 N. C., 245; McIlhany v. Railroad, 122 N. C., 995; Lloyd v. Railroad, 118 N. C., 1010. Tie alleged that no warning by bell or whistle was heard by him; and the fact that there was no signal given for the crossings, if such was the fact, is some evidence to be considered by the jury as to whether the train was" carefully operated at the time of the injury, and as to whether proper warning was given to him of the approach of the train, though it was not conclusive upon the question of negligence, so as to justify an instruction from the court clearly implying that if there was no headlight on the engine it was negligence not to give the usual signals for the crossings. If the plaintiff was a mere trespasser on the track, using it for his own convenience or without any license or permission of the company, express or implied, he certainly is not entitled to rely on a crossing signal, as the company owed no duty to him other than to enable him, by its careful operation of the train with respect to the place where he was hurt, to escape danger. Its failure to have a headlight, so that he could see “the train as it approached, was negligence as to him. If he actually saw the train or heard it as it approached him, and failed to clear the track, if he had reasonable time to do so, he was guilty of negligence which defeats his recovery. The doctrine is thus stated in Williams v. Railroad, 135 Ill., 491: “In order to a recovery for negligence, it is not sufficient to show that the defendant has neglected some duty or obligation existing .at common law or imposed by statute, but it must be shown that the defendant has neglected'a duty or obligation which it owes to him who claims damages for the neglect. The duty of railroad companies to ring a bell or sound a whistle on a train approaching a highway crossing is intended for the protection or benefit of travelers upon the public highway and passengers upon the passing train, and the place indicated is the intersection of a railroad with a public highway.” It may be tersely expressed thus: If'the defendant owes a duty, but does not owe it to the plaintiff, the action will not lie in favor of the plaintiff, even if there is a breach of the duty. Sh. & Redf. on Neg. (4th Ed.), sec. 8; Bish. on Noncontract Law, sec. 446. Reid v. Railroad, 140 N. C., 146, which was cited by the plaintiff's counsel in support of their contention, is not in point, as there the injured person was on the highway or street, where she had the right to be. In Fulp v. Railroad, 120 N. C., 525, there was a nonsuit, and it would have been correct to hold that the failure to give the proper signals for the crossing was evidence of negligence, but in fact the decision turned upon an erroneous instruction that if a signal given at the usually safe distance would not have aroused the plaintiff’s intestate, who was lying drunk upon the track, there was no negligence, which excluded from the consideration of the jury the duty of the defendant to avail itself of the last clear chance to save the life of the intestate. In other cases where it has been held that a failure to give the proper signal of the approach of a train to a crossing is negligence, it will be found either that the injured party was attempting to cross the track on a public highway or that there were other facts and circumstances which actually controlled the decision of the Court without necessarily involving the principle herein discussed. Stewart v. Railroad, 136 N. C., 385, is the only case where any very clear intimation as to the law upon this question is given, and it was in favor of the view we take in this case.

If the plaintiff was where he had the right to be when he was injured, it may be that the conduct of the defendant in operating its train constituted actionable negligence, within tbe principle laid down in Read v. Railroad, supra, and the cases therein cited, and also in Heavener v. Railroad, supra. But we are unable to say upon what theory or under which part of the .charge of the court the verdict was based, and therefore error in any one of the instructions which may have influenced the jury entitles the defendant to a new trial. Tilleti v. Railroad, 115 N. C., 663; Williams v. Haid, 118 N. C., 481; Edwards v. Railroad, 132 N. C., 99. The cases we have cited relate to conflicting instructions, but the principle upon which they were decided applies with equal force to a case of this kind, when it is impossible--to. determine upon which of the instructions the jury proceeded in finding their verdict.

New Trial.