High v. Carolina Central Railroad
17 S.E. 79
N.C.
1893
Check Treatment
Avery, J.:

This case is governed by the principle laid down in McAdoo v. Railroad, 105 N. C., 140. Where an engineer sees, on the track in front of the engine which he is moving, a person walking or standing, whom he does not know at all, or who is known by him to be in full possession of his senses and faculties, the former is justified in assuming, up to the last moment, that the latter will step off the track in time to avoid injury, and if such person is injured the law imputes it to his own negligence, and holds the railroad company blameless. Meredith v. Railroad, 108 N. C., 616; Norwood v. Railroad, 111 N. C., 236.

This case is clearly distinguishable from Deans v. Railroad, 107 N. C., 686; Bullock v. Railroad, 105 N. C., 180, and Clark v. Railroad, 109 N. C., 430. In the first case named the engineer could by proper watchfulness have seen that the person killed was lying apparently helpless across the track, at a distance of half a mile; in the second, the engineer at a distance of a thousand yards actually saw a man running on the track -waving his handkerchief as a *389 signal to stop, and also saw or might have seen a horse and wagon apparently stalled at a crossing one hundred and fifty yards further on; in the third, the engineer could have seen in time to avert injury that the decedent had gone upon a trestle in his front, from which he could not step off in time to avert injury, if the speed of the engine should not be diminished.

The failure of the engineer 'to keep a proper lookout subjects the company to liability only in those cases where, if he had seen the situation of the injured party, it would have become his duty to pursue such a course of conduct as would have averted it. Whethex’ he saw the plaintiff at ■a distance of one hundred and fifty yards or of ten feet, he was not at fault in acting on the supposition that she would • still get out of the way. It is not material whether the train was moving fast or slow in such a case as this. For .present purposes the relative condition of the parties would have been the same had the engine been moving fifty miles an hour and had she been discovered on the track at a distance that would be traversed in the same time that would have been consumed in going ten feet at the rate of ten miles an hour, unless additional liability should have been incurred by running so fast in a populous town.

If the plaintiff had looked and listened for approaching trains, as a person using a track for a foot-way should in the exercise of ordinary care always do, she would have seen that the train, contrary to the usual custom, was moving on the siding. The facts that it -was a windy day and that she ■ was wearing a bonnet, or that the train was late, gave her no greater privilege than she would otherwise have enjoyed as licensee; but, on the' contrary, should have made her more watchful. Norwood v. Railroad, supra. There was nothing in the conduct or condition of the plaintiff that imposed upon the engineeer, in determining what *390 cour.se he should pursue, the duty of departing from the usual rule that the servapt of a company is warranted in expecting licensees or trespassers, apparently sound in mind and bodjr and in possession of their senses, to leave the track till it is too late to prevent a collision. Meredith v. Railroad, supra.

The record is fatally defective, in that it does not show that a Superior Court was opened and held for Bladen county at all. Besides, the judgment is not sent up, nor does it appear whether it was founded upon a verdict on the issues or a nonsuit, to which plaintiff submitted on hearing the intimation of the -Judge. But it is an appeal by a pauper, and there may be some palliative if not meritorious reason for failing to look after the making up of the transcript, and, if not, we can foresee no evil from viewing the case in the most favorable aspect for the plaintiff by supposing that she submitted to judgment of non-suit and appealed. Appeal Dismissed.