Lee v. Southern Railroad

AlleN, J.

It is rare that negligence or contributory negligence is dependent on a single fact, and, on tbe contrary, it is to be determined by a consideration of all tbe relevant surrounding circumstances.

One fact, separated from others, may have little or no bearing, and by tbe process of elimination, all ground for tbe contention that negligence exists on tbe part of tbe plaintiff or defendant may be removed, when, if all tbe circumstances are considered together, tbe inference of negligence is manifest.

We do not, therefore, approve tbe practice of making single instances tbe basis of instructions, although sometimes permissible, but if there is error in tbe instructions given by tbe court, and tbe subject of exception, it is immaterial, because, in our opinion, tbe plaintiff is guilty of contributory negligence on bis own evidence, as be admits that be left a place of safety at tbe end of tbe boxcars and walked a distance of eight feet, on a clear day, on to a track, where be knew trains were constantly passing, when be was enveloped with smoke, an obstruction that would be removed in a moment, and when he says “I waited until tbe northbound train bad passed before I started across, and still tbe smoke was settled around there so I could not see,” and again: “I walked across slow; I looked down tbe track as soon as I stepped out from behind tbe boxcars; I walked straight across; tbe train was so close to me it bit me by tbe time I walked tbe distance between tbe sidetrack and tbe southbound main-line track. I could not see it for tbe smoke.”

One who voluntarily goes on a railroad track, where tbe view is unobstructed, and fails to look and listen, cannot recover damages for an injury, which would have been avoided if be bad done so.

Tbe duty to look and listen may be qualified by obstructions and other circumstances, and when these appear the question of contributory negligence is ordinarily for tbe jury.

He is not required to look continuously when be has been misled by tbe failure of tbe company to give notice of tbe approach of its train, or where bis attention is rightly directed elsewhere, and he cannot be expected to look in both directions at the same time.

These principles are established by Cooper v. R. R., 140 N. C., 209; Inman v. R. R., 149 N. C., 123; Farris v. R. R., 151 N. C., 483; Fann v. R. R., 155 N. C., 136; Johnson v. R. R., 163 N. C., 431; Penninger v. R. R., 170 N. C., 475; Perry v. R. R., at this term, and in other cases, but they are not determinative of the present appeal, because in all of them, where obstructions were present, they were not temporary and fleeting, while in this case the plaintiff was prevented from seeing the approaching train by the smoke of another train, which would have been lifted or removed in a moment of time.

If the plaintiff had a bandage across his eyes the law would not permit him to walk on a track, where he might reasonably expect a train, without removing it, and the smoke was as effective as the bandage would be in obscuring or blotting out the vision, for the time, and almost as easily and speedily gotten rid of.

As said in Oleson v. R. R., 32 L. R. A. (Ind.), 152: “Under the circumstances, it was his duty to wait in a j>lace of safety until he could see and hear, and thus, with reasonable certainty, ascertain that no westbound train was approaching on the south track. If the obstruction had been of a permanent character, the question would be a different one, but here the smoke was, as he knew, but a temporary obstruction; and, if he had but waited a few moments, he could have seen the approaching train, and avoided the injury.”

In West Keresy Railroad Co. v. Ewan, 55 N. J. L., 574, the plaintiff was held to have been negligent in going upon a railroad track while the noise and smoke of a train that had just passed deprived him tem-norarily of the power to see clearly and hear distinctly. The plaintiff traveling along the street on foot in the day time came to the defendant’s intersecting railroad, which consisted of three tracks. He stopped upon the first track,'which was not in use, for a freight train going towards his left on the furthest track to pass the crossing. This train .made a “tremendous noise,” and emitted smoke which settled down upon the tracks. When the freight train had passed, then, knowing that the middle track was used for train coming from his left, he looked towards the left, and seeing nothing but smoke upon the track, and hearing no whistle or bell, he proceeded' to walk across at his usual gait, and was struck by train coming from the left on the middle track. After a recitation of these facts, the Court said: “From these circumstances it is apparent that the plaintiff, without any reason for haste, went upon the track when it was evident to him that he would neither see nor hear any train which he was aware might be approaching, and when the causes of his inability to see and hear were so fleeting that in a few seconds they would have gone. It seems indisputable that such conduct was negligent. In the exercise of reasonable prudence, a man could not expose his life to a peril which he knew might be imminent, if a delay of a few minutes would assure him of safety, unless impelled by some motive of extreme urgency.”

The same principle is stated by the editor and annotator in the note to Wallenburg v. Mo. P. R. Co., 37 L. R. A. (N. S.), 144, as follows: “It is negligence per se to attempt to cross a track hidden by the smoke from a passing train without waiting for a clear view. Heaney v. Railroad Company, 122 N. Y., 122; West Heresy Railroad v. Ewan, 55 N. J. L., 574; Lortz v. Railroad Company, 83 Hun., 271; Hovenden v. Railroad, 180 Pa., 244.”

The same doctrine is laid down in 22 R. C. L., 1033, and in numerous other authorities, some of which are referred to in the cases cited, and being in our opinion just and based upon reason, we must apply it.

We have come to this conclusion on the facts of this case, and after considering the different cases in our reports in which recoveries were sustained in behalf of plaintiffs, which we have no disposition to disturb.

No error.