Deans v. Wilmington & Weldon Railroad

Avery, J.:

When this Court, in the case of Gunter v. Wicker, 85 N. C., 312, adopted the rule laid down in Davies v. Mann, 10 M & W. (Exc.), 545, that “notwithstanding the previous negligence of the plaintiff, if, at the time when the injury was committed, it might have been avoided by the exercise of reasonable care and prudence on the part of the defendant, an action will lie for damages,” it was thenceforth aligned with one of two classes, holding widely divergent views as to the effect of contributory negligence on the part of a plaintiff, unler certain circumstances, upon his right of recovery. That ruling has been expressly approved in a large number of later cases, and is now firmly grounded as a part of our system, in so far as it is distinct from that of any other Courts where the common law of England prevails. Farmer v. Railroad, 88 N. C., 564; Turrentine v. Railroad, 92 N. C., 638; Aycock v. Railroad, 89 N. C., 321; Troy v. Railroad, 99 N. C., 298; McAdoo v. Railroad, 105 N. C., 140; Daily v. Railroad, 106 N. C., 301; Lay v. Railroad, 106 N. C., 404; Bullock v. Railroad, 105 N. C., 180; Carlton v. Railroad, 104 N. C., 365; Wilson v. Railroad, 90 N. C., 69; see also, Wymer v. Wolf, 52 Iowa, 533; Railroad v. Kellon, 92 Ill., 245; Meeks v. Railroad, 56 Cal., 513; Kenyon v. Railroad, 5 Hum. (N. Y.), 479.

In those States where the very opposite view was taken, it was held that where one went upon the track of a railroad company, at a point other than a crossing where the public have a right-of-way, without special license, he was a trespasser, and could not recover for any injury inflicted upon him through the negligence of such company’s agents or employees unless it was wanton. Mulherrin v. Railroad, 81 Penn., 366; Rounds v. Railroad, 64 N. Y., 129; Railroad v. Sinclair, 62 Ind., 301; Donaldson v. Railroad, 21 Minn., 293; Beach on Con. Neg.; Express Company v. Nichols, 33 N. J., 434.

In delivering the opinion in Manly v. Railroad, 74 N. C., 655, Justice Bynum foreshadowed, by an intimation the subsequent adoption by this Court, in Gunter v. Wicker, supra, of the principle stated in Davies v. Mann, supra, and, after it had been approved in so many well considered opinions, it became apparent that it would be illogical and inconsistent to adhere to the rule laid down in Herring v. Railroad, or the interpretation generally' given to Judge Pearson’s language by the leading text-writers of this, country. In that case, the engineer might have seen two little negroes who were lying on the track asleep, according to conflicting testimony, from two hundred yards to a half mile, before his engine reached them. lie did not actually discover that the children were asleep till he was within twenty-five or thirty yards of them. The testimony showed, also, that the train could have been stopped by the engineer within from seventy-five to one hundred yards. The Judge below charged the jury that the railroad company was not liable for the neglect of the engineer to keep a lookout along the track except when he was approaching a crossing of a public road over the railway, and was not responsible for his failure to use the appliances at his command to stop the train until he actually saw the children asleep on the track at a distance of twenty-five or thirty yards. This instruction was sustained by the Court in the face of the fact that the counsel for the plaintiff cited and relied upon Davies v. Mann, supra. The Court failed even to advert to the doctrine laid down in that case.

It must, therefore, have been the settled purpose of this Court, when the doctrine of Davies v. Mann was approved, to modify this rule whenever the point should be plainly presented, and that contingency has never arisen until the present time. We have reiterated the principle that where an engineer sees a human being walking along or across the track in front of his engine, he has a right to assume, without further information, that he is a reasonable person, and will step out of the way of harm before the engine reaches him. McAdoo v. Railroad, 105 N. C., 153; Daily v. Railroad, supra; Parker v. Railroad, 86 N. C., 221. It is not negligence in an engineer to act, in the absence of specific information, on the presumption that a man who is apparently awake, and is moving, is in full possession of all of his senses and faculties

But it has been repeatedly held by this Court that it is the duty of an engineer while running an engine, to keep a careful lookout along the track in order to avoid or avert danger, in case he shall discover any obstruction in his front, whether at a crossing or elsewhere. Bullock v. Railroad, supra; Carlton v. Railroad, supra; Wilson v. Railroad, supra.

If the engineer discover, or by reasonable watchfulness may discover, a person lying upon the track asleep or drunk, or see a human being who is known by him to be insane, or otherwise insensible to danger, or unable to avoid it, upon the track in his front, it is his duty to resolve all doubts in favor of the preservation of life, and immediately use every available means, short of imperiling the lives of passengers on his train, to stop it. Railroad v. Miller, 25 Mich., 279; Railroad v. St. John, 5 Sneed (Tenn.), 504; Railroad v. Smith, 52 Tex., 178; Isbell v. Railroad, 27 Conn., 393; Meeks v. Railroad, 56 Col., 513. For similar reasons we have held that the test of negligence where live-stock is killed or injured by a train is involved in the question whether the engineer, by keeping a proper lookout, could have discovered the animal in time to have prevented the injury. Carlton v. Railroad and Watson v. Railroad, supra. In Bullock v. Railroad the same criterion was applied where it was alleged that an engineer might have discovered that a wagon was stalled at a crossing in time to prevent injury bjr stopping his train.

The pertinent portions of the testimony in the case before us may be gathered and grouped as follows, bearing in mind always that if, in the most favorable aspect for the plaintiff, there was a question raised that it was the exclusive province of the jury to determine, then there was error. A witness on the roadside could see plaintiff’s intestate lying on the side of the track .three-fourths of a mile distant. He could not tell, from his position and at that distance, whether he was lying across the rail, but thought his head wras on the road-bed beyond the ends of the cross-ties; when the engineer was passing, the witness waved his hand at him as a signal to be watchful. The engineer looked, but did not seem to comprehend what was meant. The train was running at the rate of about twenty miles an hour. The witness who made the signal had been engaged at the water-tank for about eleven months, and had been often seen there by the engineer, .but had not made.his acquaintance.

Could the engineer, by ordinary care, have seen that the plaintiff’s intestate was lying apparently helpless upon the track, with his head inside the rail, in time to have stopped the train before it reached him ? Defendant’s counsel contended that there was no testimony offered to show within what distance the engineer, by using all available appliances, could have stopped the train, and, therefore, the jury could not consider the question whether he could have avoided inflicting the injury. With the data furnished by the evidence it was the province of the jury, either with or without additional light from expert witnesses, to determine how many feet or yards of track the train must have traversed after the engineer reversed his engine and blew brakes before he could have put a complete stop to its movements without damage to those on the train. The jury were at liberty to exercise their own common sense, and to use the knowledge acquired by their observation and experience in every-day life in solving the question, whether the engineer, in the exercise of due diligence, might have discovered, from his elevated position on the engine, the fact that plaintiff’s intestate was lying helpless across the rail, and whether, by prompt and strenuous effort, he could have saved his life, without putting his passengers in jeopardy. Railroad v. Miller, 25 Mich., 292; Nerbus v. Railroad, 62 Cal., 322. Courts and juries acting within their respective provinces must take notice of matters of general knowledge and use their common sense where the evidence makes the issue of law or fact depend upon their exercise. Best on Ev., 262, note F; Wood’s R. L., 1064, note.

If the facts had been undisputed, and such that only one inference could have been drawn from them, it would have been the duty of the Court to decide whether there was negligence. But upon the testimony before them in this case, the Judge should have left the jury to say whether they could deduce satisfactorily from the evidence the inference that the engineer discovered, or could, by ordinary care, have discovered, that plaintiff’s intestate was lying, apparently insensible, upon the track, in time to have avoided the injury, or whether they thought a preponderance of testimony was in favor of the inference that defendant’s employees could not have averted the accident by exercising the diligence required by law. Smith v. Railroad, 99 N. C., 241; Troy v. Railroad, 99 N. C., 298; Railroad v Picksley, 21 Ohio, 654. Men of fair and reasonable minds might have drawn different conclusions from the evidence in this case, although there is no material conflict between the testimony of the witnesses examined, and, therefore, the jury should have been allowed to determine whether the engineer might have ascertained, by keeping a proper lookout, the real condition of the deceased, admitting, even, that he was drunk, and by timely exertion have saved him harmless, without peril to the passengers or other persons on the train. 2 Thompson on Neg., 1178 and 1179; Wood’s R. L., §319, p. 1259.

Judge Cooley (in his work on Torts, p. 670) says: “If the case is such that reasonable men, unaffected by bias or prejudice, would be agreed concerning the presence or absence of due care, the Judge "would be quite justified in saying that the law deduced the conclusion accordingly. If the facts are not ambiguous, and there is no room for two honest and apparently reasonable conclusions, then the Judge should not be compelled to submit the question to the jury as one in dispute.”

The rule applicable to our case is that, though the facts may be undisputed, yet, if two reasonable and fair-minded persons might draw inferences from them so different that according to the conclusion of fact reached by one there would be negligence, while that deduced by another would show the exercise of ordinary care, then the issue should be submitted to the jury.

We think that his Honor erred in declaring the testimony insufficient, in any aspect of it, to warrant the inference on the part of the jury that the defendant might have prevented the injury by the exercise of ordinary care. There must be a new trial.

Error. New trial.