Royster v. Southern Railway Co.

At the conclusion of the evidence the court sustained the motion of defendant to nonsuit the plaintiff upon the ground that upon his own evidence he was guilty of such contributory negligence as barred recovery. The plaintiff excepted and appealed. This is one of those hard cases which have been called the "quicksands of law." A worthy mall is injured in endeavoring to assist another, and yet under his own version of the facts we feel compelled by a long line of precedents to sustain the judge of the Superior Court in holding that he is barred from recovery upon well settled principles of the doctrine of contributory negligence. The plaintiff testifies in substance that he lived at Bullock and that his occupation was that of firing a boiler at night, and that he is not in defendant's employment; that on the night of 23 January, 1907, he undertook to flag defendant's mixed freight and passenger train for one Davis; that he placed a lantern near the center of the track, the usual method used in flagging trains; that it was customary for the engineer of the approaching train to answer the signal by two short blows of the whistle and to ring the bell. After placing the lantern, plaintiff returned to his work. Re soon heard the train coming, some 400 yards distant, running 40 or 50 (349) miles an hour. It was pulling up a grade when be heard it. Plaintiff started for his lantern. He says lie looked up the track for the train when about 12 feet from the lantern. After that he stepped behind a box car on a siding so as to place the car between himself and the approaching train. "I stepped on the track just as the train was coming from behind the box car. I heard no station blow; saw no reflection. If the train had a headlight, I did not see it. The top of the grade was about 400 yards from where I was, near the whistle post. The down grade was heavy from that point to beyond my place." Plaintiff further says: "I heard the train coming, and I knew it was coming when I went on the track. It was a great deal nearer than I thought. I heard no blow of the whistle and no bell rung, and that was what fooled me. When I first heard the train I thought it was coming up grade. From the whistle post to the depot is down grade. I knew all about the surroundings about the station and about the place. I kind o' trotted about 4 or S yards when I first left my boiler to where I could see the train. I saw no train when I quit trotting. I then went 4 or S steps and got behind the car, and then went to get my lantern, and got hit. I did not see the train. I saw no light in the fire box. The curve began about 50 yards from my lamp, I think. The curve is on the same side as my boiler-house, looking down the track towards Oxford. I went to the hotel in Clarksville and was afterwards taken home. Just as I stepped on the track the engine hit me. It was about 100 yards from where I and Mr. Davis were to where the curve began. The lantern was down the track towards Clarksville from me. It was about 20 yards from my shed to the lantern. There were two box cars and a fiat car on the siding. The flat car was towards Oxford and the box car was the last car I went around as I went to get the lantern. I could not see up the track in the direction from which the train was coming when I went around the car to get my lantern. I thought I would get my lantern and wave it a time or (350) two and have them stop. Sometimes the engineer would see my lantern on the track and sometimes I would get it off, and if the train had blown I would not wave my lantern. I saw no reflection of the headlight that night." The plaintiff further testified that "the headlight, if the train had one, would have thrown the light on my shed. I saw no reflection that night. The headlight would throw its beams 100 or 150 yards. I saw no headlight on the engine." These are the salient facts as given by the plaintiff himself.

The doctrine of contributory negligence is founded upon the theory that negligence upon the part of some one sought to be charged with its consequences has been proven, and is based upon the general principle as stated by Mr. Justice Nelson: "A man is not at liberty to cast himself upon an obstruction which has been made by the fault of another and avail himself of it if lie does not use common and ordinary caution to avoid it. One person being in fault will not dispense with another's using ordinary care for himself." Williams v. Barrett, 13 How, (U.S.), 109; Moore v. R.R., 24 N. J., 283.

The courts have universally held that persons, before entering upon a railway track, must look and listen for approaching trains, and that a recovery cannot be had for an injury resulting from the lack of this common precaution. Cooper v. R. R., 140 N.C. 213, and case cited. Upon the same principle it is held that trying to cross the track when a train is known to be due and when the slightest delay in getting across would probably be fatal is negligence and bars recovery. Beach on Cont. Neg., 280, sec. 188; Mantel v. R. R., 33 Minn. 62; Rhoades v. R. R.,58 Mich. 263; Griffen v. R. R., 40 N.Y. 34. And if, with an approaching train in view, a person undertakes to cross the track in advance of the train, he cannot recover for injury sustained. Pharr v. R. R., 133 N.C. 610; Beach, supra; S. v. R. R., 76 Me. 357; Allen v. Pennsylvania R. R., 12 A. 493; R. R. v. Kuehn, 70 Tex. 582; Rigler v. R. R.,94 N.C. 610. So it has been held that where a person is apprised (351) of an approaching train by its noise, and ventures upon the track from miscalculation of his danger, the error is his, and defendant is not answerable for his mistake. R. R. v. Hunter, 33 Ind. 335, and cases cited. The failure to sound bell or whistle will not render the defendant liable to a person who actually knows the train is approaching. R. R. v.Sunderland, 2 Ill. App. 307. Nor does the fact that a train is running unusually fast make any difference if the injured party knew it was approaching. Pepper v. R. R., 105 Cal. 389; Kelly v. R. R.,75 Mo., 138. The Supreme Court of Indiana declares that a person who voluntarily attempts to go upon a railroad track in front of a train lie knows to be approaching cannot recover for injury, although the railroad company is "culpably negligent" in the management of the train.131 Ind. 261. The books are full of such cases and it is useless to multiply citations.

Assuming, as we do, that there was no headlight, no bell rung, no whistle blown, that the defendant was derelict in all these, and further that the plaintiff was not a trespasser on the track, how stands his case? Is there anything in it to except it from the universal rule that a person who enters on a railway track in front of a train he knows to be approaching is guilty of such negligence that he cannot recover for injury sustained?

There are instances where the negligence of one is the proximate cause of an injury to another who is himself negligent; but that cannot be so in a case like this, where every negligent omission of duty complained of was well calculated to put the plaintiff on his guard and to warn him to keep off the track.

This case differs from all the cases cited by plaintiff in the fact that the plaintiff knew the train was rapidly approaching when he stepped on the track. Before he left his shed he heard the exhaust of the engine as it pulled up the stiff grade, the top of which was only about 400 (352) wards [yards] from where plaintiff was hurt. As he left the shed and walked 20 yards towards the track to get the lantern, he knew the train had passed the top of the grade and was rapidly speeding down grade, for lie says he could hear the noise of the engine and train no longer. The steam was evidently shut off and the exhaust had stopped. He knew the engineer had not discovered the lantern on the track, for he says the engineer always blew when he saw it, and the engine had not blown. He knew what a short distant the train had to run to reach the lantern, and he knew it was coming in the dark, although he could see no headlight and could hear no bell. Plaintiff looked up the track before he reached the siding, and, seeing and hearing nothing, although he knew positively that the train was rapidly approaching, he passed the siding, went around the box cars thereon, and unfortunately, withoutagain looking, he stepped on the track and was hit by the engine.

Common prudence demanded that he should look again after he crossed the siding and passed around the box cars before he went on the main track in front of a train he knew was rapidly approaching. In fact, under all the circumstances and conditions as he says he knew them, he should not then have ventured on the main track at all. Had he looked after passing around the box cars he doubtless would not have done so and would have escaped injury. It is evident from his testimony that the plaintiff knew his signal had not been discovered and that he was making a most imprudent effort to get the lantern so as to wave it and stop the train for Davis. Under all. the authorities we are of opinion that the judgment of the Superior Court should be

Affirmed.

Cited: Champion v. R. R., 151 N.C. 198; Mitchell v. R. R., 151 N.C. 117;Exum v. R. R., 154 N.C. 411; Shepherd v. R. R., 161 N.C. 522;Dunnevant v. R. R., 167 N.C. 233; Davis v. R. R., 170 N.C. 589; Home v.R. R., ib, 660.

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