Meredith v. Richmond & Danville Railroad
13 S.E. 137
N.C.
1891
Check Treatment
Avery, J.:

Where the engineer in charge of a moving engine sees a human being walking along the track in front of it, if such person is unknown to him and is apparently old enough to understand the necessity for care and watchfulness, under such circumstances the engineer may act upon the assumption that he will step off the track in time to avoid injury. McAdoo v. Railroad, 105 N. C., 140; Parker v. Railroad, 86 N. C., 221. The witnesses concur in the statement that the boy who was injured was an intelligent youth about thirteen years old. In the absence of knowledge or *618 information to the contrary, the engineer was justified in supposing that he would look to his own safety even when trains were moving on three parallel tracks, if there was manifestly an opportunity to escape by walking across the rail to a neighboring side-track. Daily v. Railroad, 106 N. C., 301.

The fact that there was then no other possible route for persons walking from Paint Rock to Hot Springs would not relieve a man, or boy of his age, endowed with reason and the instinct of self-preservation, from the duty of watchfulness, when he must know and should be always mindful that carelessness will expose him to danger.

Actual or implied license from the railroad company to use the track as a foot-way would not relieve him from the consequences of failing to exercise ordinary care. The license to use does not carry with it the right to obstruct the road and impede the passage of trains. McAdoo v. Railroad, supra. Where the engineer knows the person on the track, and has knowledge or information that he is of unsound mind, or so deaf that he cannot hear an approaching train, or where the engineer sees or can, by ordinary care and watchfulness, discover that a human being is apparently lying asleep or helplessly drunk, or an animal or wagon is entangled on the track in his front, even at a public crossing, he cannot relieve the company of liability for injury caused by running over the person or animal, except by showing that he promptly used every available means, short of imperiling the lives of passengers on his own train, to avert the danger. Deans v. Railroad, 107 N. C., 686; Bullock v. Railroad, 105 N. C., 189; Carlton v. Railroad, 104 N. C., 365. The same rule applies where the injury has been done to a child apparently too small to understand the da-nger, and where the engineer, had he kept a proper lookout, might have averted it without peril to passengers. The boy injured was described by witnesses as bright and “ smart;” but, if he *619 was apparently capable of appreciating his peril or his situation, it is sufficient to relieve the servants of the company from the imputation of carelessness in assuming that he would step aside before the engine reached him. Considerations of public policy, such as the reasonable demand for the speedy transportation of mails, and the proper regard for the safety of passengers, forbid that trains should be stopped for trivial causes, or that the lives of those on board should be put in jeopardy, even to avert manifest danger to others.

We concur with the Judge below in the opinion that the plaintiff was not entitled to recover, because by the undisputed facts, considered in any phase presented by them, the plaintiff was negligent in failing to see the train approaching him from behind, while the servant of the defendant was not in fault in acting on the belief that plaintiff would move out of the way of the engine before it should reach him. There is no error.

Affirmed.