34 S.E. 634 | N.C. | 1899
The whole case is covered by the opinion. This is a civil action for damages against the defendants as receivers of the Richmond and Danville Railroad Company, caused by the alleged negligent and willful conduct of the defendants' servant in frightening horses driven by the plaintiff.
The plaintiff alleged in his complaint, that while driving a pair of horses to a hack one-half mile up the Tuckaseigee River from Bryson City, he went into the mouth of Deep Creek to water his horses, and that while his horses were so being watered, the defendant ran one of its trains over the trestle crossing Deep Creek, willfully, wantonly and maliciously blew its engine whistle for the purpose of frightening plaintiff's horses; that it did frighten them, causing them to run out of the mouth of the creek into the river, and to injure plaintiff. He further charged that the defendant negligently blew the whistle at an unusual place, all of which was denied by the defendant.
Issues submitted to and responses of the jury:
1. Did defendants' engineer or fireman, wantonly, wrongfully, and intentionally sound the whistle of the engine for the purpose of frightening the horses the plaintiff had in charge, and was the plaintiff injured thereby? Yes.
2. Was the plaintiff injured by the negligence of the defendant? Not answered.
3. Did the plaintiff, by negligence of his own, contribute to his injury? Not answered.
4. What damage has plaintiff sustained? $1,200.
The following is all the charge of the court that appears in the record: *336
(476) The court charged as follows, upon the first issue:
To answer first issue "Yes," the burden is upon the plaintiff to prove by the greater weight of evidence that the engineer blew the whistle maliciously or wantonly, as I will presently explain, and thereby frightened and caused the horses to run into the river, and injured the plaintiff.
If the whistle was blown for the purpose of frightening the horses, it must have been either a malicious or a wanton act. If with a desire to cause injury, it was malicious. If in a spirit of sport or indifference to the consequences, it was wanton. So far as the element of malice or wantonness is concerned, the question for you to determine is whether the whistle was blown for the purpose of frightening the horses.
To find that the blowing was malicious or wanton, you must find in the first place that the engineer had seen plaintiff and the horses, or that the fireman had seen them and informed the engineer. Even though you should find that the engineer had knowledge of the presence of plaintiff and the horses, the evidence would not warrant you in finding malice or wantonness if the whistle was blown at about the usual place and in a usual manner. Therefore, to answer first issue "Yes," you must find that it was blown at an unusual place or in an unusual and unnecessary manner. I do not mean to say if it was blown at an unusual place or in an unusual manner you ought to find that it was blown maliciously or wantonly, or, in other words, for the purpose of frightening the horses, but merely that unless you do find that the place or the manner was unusual, there would not be sufficient evidence upon which to answer the first issue "Yes." If you do find that the place or manner of the blowing was unusual, then that fact is to be considered by you in connection with all the evidence in determining whether the whistle was blown to frighten the horses; and it is a matter altogether for you (477) as to what, if any, weight shall be given to the fact. To sum up, if you are satisfied, by the greater weight of the evidence, that the engineer had knowledge of the presence of plaintiff and the horses; that he blew the whistle at an unusual place or in an unusual manner; that his purpose was to frighten the horses, and that he did frighten and cause them to run into the river, and thereby injure the plaintiff, you will answer the issue "Yes." If you do not find these to be the facts you will answer it "No."
In lieu of defendants' twelfth request the court charged if the whistle was blown directly over the road leading up the creek under *337 the trestle, that fact is immaterial in so far as the being over the road is concerned. If the trestle was an unusual place at which to blow the whistle, that fact is a matter of evidence for you to consider, as I have explained; but the fact that the road leading up the creek ran under the trestle is immaterial.
The defendant asked the court to give the following among other instructions:
5. The defendant had the right to run its trains over its track and to make the noises caused by the blowing of the whistle, which were necessarily incident to the operating of its trains; and if the jury find from the evidence that no more noise was made than was necessary, the answer to the first issue should be, "No."
Exception 1. This instruction was modified as follows: "Unless the whistle was blown at an unusual place, for the purpose of frightening the horses, and thereby caused the injury"; and to such modification the defendant excepted.
The finding of the jury on the first issue eliminated all question of negligence either of the defendant or the plaintiff. This appears to have been admitted, as no part of the charge is sent up except that relating to the first issue. The charge appears to us unexceptionable, and the special instructions asked by the defendants (478) were properly refused, except in so far as given. It is well settled that contributory negligence, even if admitted by the plaintiff, is no defense to willful or wanton injury. 3 Elliott on Railroads, secs. 1175, 1251, 1254, 1642; 2 Wood on Railroads, p. 1452; Beach on Cont. Neg., secs. 46, 50, 64, 65, 416. The large number of cases cited by the said authors fully sustain the principle.
This case arises out of the same facts as Everett v. Receivers, reported in
Affirmed.
Cited: Palmer v. R. R.,
(480)