Boone v. North Carolina Railroad ( 1954 )

81 S.E.2d 380 (1954) 240 N.C. 152

BOONE
v.
NORTH CAROLINA R. CO. et al.

No. 377.

Supreme Court of North Carolina.

April 28, 1954.

H. W. Calloway, Jr., L. E. Barnhardt, Concord, for plaintiff, appellant.

Hartsell & Hartsell, William L. Mills, Jr., Concord, for defendants, appellees.

PARKER, Justice.

Plaintiff has based his right to recover solely on the ground of negligence. His complaint must be liberally construed with a view to substantial justice between the parties. G.S.N.C. § 1-151; Cox v. Hennis Freight Lines, 236 N.C. 72, 72 S.E.2d 25. The demurrer admits the truth of factual averments well stated, and such relevant inferences as may be deduced therefrom, but it does not admit any legal inferences or conclusions of law asserted by the pleader. McKinney v. High Point, 237 N.C. 66, 74 S.E.2d 440.

Actionable negligence in the instant case does not exist, unless "there has been a failure to exercise proper care in the performance of some legal duty which the defendants owed" plaintiff's intestate, "under the circumstances in which they were placed"; and unless "such negligent breach of duty was the proximate cause" of intestate's death—"a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence" could have reasonably foreseen that some injury or harm would probably result from his act or omission under all the facts as they existed. Whitt v. Rand, 187 N.C. 805, 123 S.E. 84; Mills v. Moore, 219 N.C. 25, 12 S.E.2d 661; Hammett v. Miller, 227 N.C. 10, 40 S.E.2d 480; Mikeal v. Pendleton, 237 N.C. 690, 75 S.E.2d 756; Hart v. Curry, 238 N.C. 448, 78 S.E.2d 170.

Foreseeability does not require the negligent person should have been able to foresee the particular injury precisely as in fact it occurred, or to anticipate the particular consequences actually flowing from his act or omission. Hart v. Curry, supra; Drum v. Miller, 135 N.C. 204, 47 S.E. 421, 65 L.R.A. 890, 102 Am. St. Rep. 528; 38 Am.Jur., Negligence, Sec. 62.

When the result complained of is not reasonably foreseeable in the exercise of ordinary care under all the facts as they existed, an essential element of actionable negligence is lacking. Roberson v. Carolina Taxi Service, Inc., 214 N.C. 624, 200 S.E. 363; Newell v. Darnell, 209 N.C. 254, 183 S.E. 374.

"One is not under a duty of anticipating negligence on the part of others, but in the absence of anything which gives or should give notice to the contrary a person is entitled to assume, and to act on the assumption, that others will exercise ordinary care for their own safety, * * *." 65 C.J.S., Negligence, § 15. The quoted words appear in 45 C.J., Negligence, Sec. 86, and are quoted from that work in Tysinger v. Coble Dairy Products, 225 N.C. 717, 36 S.E.2d 246; Hobbs v. Queen City Coach Co., 225 N.C. 323, 34 S.E.2d 211. See Cox v. Hennis Freight Lines, supra, where a large number of our cases are cited; 38 Am. Jur., Negligence, Sec. 192. A party does not forfeit his right to act on this assumption, because he is not altogether free from negligence. Cox v. Hennis Freight Lines, supra.

It is well settled law in this jurisdiction that when an engineer of a train sees trespassers or licensees, who are in apparent possession of their strength and faculties, and who are not in such a position that they are unable to extricate themselves from a dangerous position, on the track ahead of him, the engineer of the train having no information to the contrary, he is not required to stop his train or even slacken its speed, for the reason that he may assume until the very moment of impact that the pedestrian will use his faculties for his own protection and leave the track in time to avoid injury. The trespasser or licensee must look, as well as listen. Beach v. Southern R. R., 148 N.C. 153, 61 S.E. 664; Abernathy v. Southern R. R., 164 N.C. 91, 80 S.E. 421; Redmon v. Southern R. R., 195 N.C. 764, at page 769, 143 S.E. 829; Way v. High Point T. & D. R. R., 207 N.C. 799, 178 S.E. 571.

In Syme v. Richmond & D. R. R., 113 N. C. 558, 18 S.E. 114, 116, the track of the defendant's railroad ran parallel and in a few feet of the track of another railroad company; the deceased was walking on defendant's track in front of an engine and tender backing in the same direction deceased was going; an engine drawing a long freight train on the neighboring track was "exhausting heavily" as it passed the deceased, and while it was passing deceased, defendant's engine ran over deceased, killing him. Counsel for plaintiff did not contend plaintiff's intestate was deficient in any of his senses, or wanting in physical or mental powers; but they did contend that the engineer must have seen the long freight train, known that its engine was "exhausting heavily," so as to render intestate as insensible to the approach of the other train, as if he had been deaf. The court stated it was intestate's duty to look as well as listen, and the engineer was justified in assuming that intestate would clear the track to save himself from harm, and said: "We are of the opinion that there was no evidence of want of ordinary care on the part of the defendant".

The speed of the on-coming train or the fact that an engine on another track is exhausting steam, or other disturbing noise is being made, which is calculated to drown the noise of an approaching train, does not put on the engineer of the approaching train the duty of anticipating that a person on the track in front of him will negligently fail to look and to step off the track in time to avoid injury, in the absence of anything which gives or should give notice to the contrary. High v. Carolina Cent. R. R. Co., 112 N.C. 385, 17 S.E. 79; Beach v. Southern R. R., supra; Abernathy v. Southern R. R., supra; Ward v. Atlantic Coast Line R. R. Co., 167 N.C. 148, 83 S.E. 326, L.R.A.1918E, 451; Treadwell v. Atlantic Coast Line R. R. Co., 169 N.C. 694, at page 698, 86 S.E. 617.

In Wyrick v. Southern R. R. Co, 172 N.C. 549, 90 S.E. 563, 564, plaintiff's intestate was a school girl on her way to school with other girls on a dirt road alongside defendant's right-of-way, and seeing a train approach went upon the track in an intervening cut; the other girls climbed the side of the cut avoiding injury; intestate while leaving the track for a place of safety caught her foot on a switch rod, and was struck and killed by defendant's train. The court after stating that a person apparently in possession of his faculties and in no difficulty will leave the track to avoid harm, and that the engineer has a right to assume this until the last minute said: "There is no evidence in this case of any substantive negligence upon the part of the engineer which would justify a verdict against the defendant on the first issue."

The doctrine of last clear chance does not apply to trespassers and licensees upon the tracks of a railroad who, at the time, are in apparent possession of their strength and faculties, and nothing to the contrary appearing, the engineer is under no duty under such circumstances of anticipating that such persons will negligently fail to seek a place of safety. Redmon v. Southern R. R. Co., supra, where the cases are cited.

In Trinity & B. V. Ry. Co. v. Blackshear, 106 Tex. 515, 172 S.W. 544, L.R.A.1915D, 278, the railroad was negligent in allowing spikes holding the rails to be loose or to lie on the ground, but the court held that the railroad could not foresee that a rapidly moving train would pick up a spike and hurl it 50 feet into a field striking Blackshear, who was there ploughing; that the railroad was not negligent, and not liable for the injury it caused.

In Shaffer v. Minneapolis, St. P. & S. S. M. Ry. Co., 156 Wis. 485, 145 N.W. 1086, plaintiff was injured in her house 147 feet from a railroad crossing, by a piece of iron being hurled through a window of the house striking her caused by a collision at the crossing of a train and threshing and boiler outfit. The court held there must have been some lack of ordinary care on the railroad's part to subject it to liability, and they found no such evidence on the record. See also Welch v. Louisville & N. R. R. Co., 163 Ky. 100, 173 S.W. 338; Cincinnati, H. & D. Ry. Co. v. Hahn, 4 Ohio App. 327; Clardy v. Southern Ry. Co., 112 Ga. 37, 37 S.E. 99.

A railroad company owes the duty to use ordinary care to avoid injuring persons on highways or private premises near its tracks. It appears that most of the cases involving this principle of law arise from objects thrown, projecting or falling from trains. However, before the railroad company can be held liable, there must have been actionable negligence on its part. 75 C.J.S., Railroads, § 984; 112 A.L.R. Annotation 850 et seq.; Louisville & N. R. R. Co. v. Eaden, 122 Ky. 818, 93 S.W. 7, 6 L.R.A.,N.S., 581 and case note p. 581.

Applying the law above stated to the facts alleged in the complaint and such relevant inferences as may be deduced therefrom, we reach this result. There is no allegation in the complaint that Walter Nance was not in full possession of his mental and physical faculties, or that he was in any difficulty on the track. The complaint alleges he was standing on the track. Under the facts alleged the engineer of defendant's train had the right to assume until the moment of impact that Walter Nance would look and step off the track to a place of safety, and the engineer did not forfeit this right because under the facts alleged in the complaint, and admitted to be true by the demurrer, he failed to give any signals of the train's approach—the complaint alleges that the electric warning signal device and the passing freight train were making a terrific noise that "would prevent the said Walter Nance and others from observing the approaching of said passenger train;" the train was travelling 75 to 90 miles per hour; that the engineer failed to keep a proper lookout. It would seem that the failure to keep a proper lookout subjects a railroad to liability only in those cases where the doctrine of last clear chance arises. High v. Carolina Cent. R. R. Co., supra.

To take the position the defendants could foresee that Walter Nance, a man apparently in full possession of all his faculties, in no difficulty, and standing on a live railroad track would negligently fail to perform his duty of looking, and to exercise ordinary care for his own safety by stepping off the track to a place of safety; that Walter Nance would remain on the track until the train struck him, and that his body would be hurled through the air about 25 feet striking plaintiff's intestate well to the west of the southbound track and just outside of the gate to the mill, killing her instantly, would require of the defendants omniscience, and make the defendants insurers of the safety of those near their tracks.

We find in the complaint, most liberally construed, and with every factual averment therein, and all relevent inferences to be deduced therefrom admitted to be true by the demurrer, no allegations of any actionable negligence against the defendants in the killing of Walter Nance and plaintiff's intestate.

The bizarre and tragic death of the intestate was proximately caused by the negligence of Walter Nance. The trial court was correct in sustaining the demurrer.

Affirmed.