151 N.C. 483 | N.C. | 1909
after stating the case: The question first presented for our consideration is the negligence of the defendants. If the evidence does not prove or tend to prove a breach of duty by the defendants towards the plaintiff’s intestate, and that such breach of duty resulted proximately in the injury complained of, then it must follow that the motion to nonsuit ought to have been allowed for failure of proof on the first issue.
In Wilson v. Railroad, 142 N. C., 333, Mr. Justice Brown, speaking for this Court, said: “The attempt to make a running switch across a much-frequented street is not only a negligent but a most dangerous and unwarranted operation, and has been so held by a number of courts. Bradley v. Railroad, 126 N. C., 735; Brown v. Railroad, 32 N. Y., 597; Falener v. Railroad, 68 Miss., 355; Railroad v. Summers, 68 Miss., 566; French v. Railroad, 116 Mass., 537; Railroad v. Garvey, 58 Ill., 83; Railroad v. Baches, 55 Ill., 379. It matters not whether the purpose was to ‘shunt’ the car off on a switch or to give it force enough to roll along on the same track; it is negligence to permit a car to be ‘cut loose’ and roll, uncontrolled by anyone, across a much-used crossing.” In Allen v. Railroad, 145 N. C., 214, the same learned Justice said: “The word ‘kicking’ seems to be used in railroad parlance as synonymous with making a ‘flying switch.’ This Court has never held such operations to be per se negligence in respect of the employees performing them. It is the attempt to make a running switch when the detached car has no brakeman on it and is under .no control that is declared to be negligence, because highly dangerous. Wilson v. Railroad, 142 N. C., 336, and cases there cited.” Vaden v. Railroad, 150 N. C., 700. In Bradley v. Railroad, 126 N. C., 735, this Court held: “A crossing which the public have- been habitually permitted to use is treated as a public-highway crossing. Russell v. Railroad, 118 N. C., 1098.” In 3 Elliott on Railroads (2d
In the present case the intestate of plaintiff occupied toward the' defendant company the relation of employee, and of this relationship the law certainly fixes the company with knowledge. He was not a-trespasser in crossing its tracks. He, together with a large number of other employees of defendant company (among them, others, not employees, were intermingled), some of whom worked on the yard, others on the stock pens, had been accustomed for about six months to cross the yards at or about the place where plaintiff’s intestate was killed, and at least one of the hours during the day, when they crossed the yard, was indicated by a whistle from the round house of defendant company. Crossing at this point enabled the employees to reach their homes and boarding places more quickly and to return to their work
We proceed next to the consideration of the motion to nonsuit, as it applies to the second issue — the contributory negligence of the plaintiff’s intestate. Upon this issue his Honor charged the jury: “It is the duty of persons going on the track of a railroad company to stop and look and listen for any train that may bs moving or lying on the track of such company and on its yards, where there are several tracks used for shifting cars, to be continually alert and on the lookout for a moving train or cars; and if a person fails in this duty, and in consequence, of such failure is injured by moving cars, the person would be guilty of contributory negligence.” While the burden of this issue rested on the defendants, the burden of duty rested upon the intestate. The law does not presume contributory negligence; it must be alleged and proven; the defendant must show such facts — either omissions to observe such cautions or the doing of such acts— from which only one inference, to-wit, the plaintiff’s negligence, can be drawn by men of ordinary reason and intelligence. Of the conduct and acts of the intestate the evidence discloses these facts: When he entered upon the yard he saw an engine and cars moving east of him; he crossed the first and second tracks, moving somewhat to the northwest; he had taken a few steps between the second and third tracks and was about to cross the.
It must not be overlooked, in reaching a conclusion in this case, that the act which occasioned plaintiff’s intestate to be killed was immediately caused by the rapidly moving engine, passing within two feet of him, at a time and place where defendants admit that they knew the intestate would be crossing, and at a time and place where the uncontradicted evidence shows that between 100 and 150 employees of defendant company and others were accustomed to cross the tracks of the yard. We are therefore of the opinion that the motion to nonsuit, upon the evidence bearing on the second issue, ought not to have been allowed, and that his Honor did not err in submitting this issue to the jury.
The defendants objected to his Honor’s submitting the third issue — that issue presenting the “last clear chance.” While this, issue has become immaterial, in view of the finding of the jury on the first and second issues, we think it was proper for his Honor to have submitted it. If the jury had found with defendants on the second issue, having found the first issue with plaintiff, the ultimate liability of defendants would have been determined by their finding on the third issue. In the presence of the concurring negligence of a plaintiff and a defendant, it is a generally accepted doctrine, and well settled in this State, that the ultimate liability must depend upon whether the defendant could at the time have avoided the injury by the exercise of reasonable care, under the attendant circumstances. Ray v. Railroad, 141 N. C., 84; Reid v. Railroad, 140 N. C., 146; Lassiter v. Railroad, 133 N. C., 244; Arrowood v. Railroad, 126 N. C., 629; Pickett v. Railroad, 117 N. C., 616.
During the trial, the plaintiff, over defendant’s objection, was permitted to offer evidence tending to show that the defendant company could have provided a safe way of crossing by building
Affirmed.