Rigler v. Charlotte, Columbia & Augusta Railroad
94 N.C. 604
N.C.
1886
Check Treatment
Ashe, J.,

(after stating the facts). The plaintiff contended that it was through the negligence of the defendant Company that he sustained the injury complained of, and the defendant, on the other hand, insists that no negligence is to be imputed to it, and if the plaintiff’s property was injured, as alleged in his complaint, it was caused by his contributory negligence, in attempting to cross the road when he saw the car approaching.

The question of primary importance in the case is, did the plaintiff’s negligence contribute to the injury of which he complains? If it did, then the great weight of authority is, that he cannot recover; and it is equally so, when both parties are at fault.

It is the duty of each party to use a reasonable degree of foresight, skill, capacity, and actual care and diligence, to enable each to use the privilege of crossing — but still, negligence on the part of the railroad company, will not excuse any one approaching a crossing, from using that degree of care and circumspection, which is necessary to secure his safety.

*610 When a traveller is approaching a railway crossing, with an unobstructed view of the track in both directions, it is his duty to look both wavs, and if he advances to the point of intersection, and attempts to cross in front of the approaching cars, and receives an injury, such conduct will constitute negligence, so as ■to preclude him from recovering. Thompson on Negligence, 426, and the numerous authorities there cited. To the same effect is Pierce on Railroads, 331 — 323. The same rule has been adopted by this Court. In Parker v. R. R. Co., 86 N. C., 221, it was held that, one crossing a railroad track, must be on the alert to avoid injury from trains that may happen to be passing; and the. omission of the engineer to give the precautionary signals of the approach of a train, when it in no way contributed to the alleged injury, does not impose a liability upon the company — and in Manly v. W. W. R. R. Company, 74 N. C., 655, the rule is thus laid down by Rodman, Judge: “When the injury arises neither from malice, design, nor wanton and gross neglect, but simply the neglect of ordinary care, and the parties are mutually in fault, the negligence of both being the immediate and proximate cause of the injury, a recovery is denied, upon the ground that the injured party must be taken to have brought the injury upon himself.” But the rule is subject to the qualification, that the injured party, although in fault to some extent, at the same time, may notwithstanding this, lie entitled to damages for an injury which could not have been avoided bv ordinary care on his part. “ When the negligence of the defendant is the. proximate cause, of the injury, but that of the plaintiff only remote, consisting of some act or omission, not occurring at the time of injury, the action for damages is maintainable.” But the evidence in this case, even that of the plaintiff himself, does not bring his case within the scope of either of the qualifications. According to his testimony, the train was running at the rate of twenty miles an hour, and at that rate must have reached the crossing in two or three minutes from the time it was seen approaching by the plaintiff, and yet, with a train coming in full *611 view, at that speed, he attempted to cross the track with a wagon. It seems to us, that no man of common prudence would have made the attempt to cross under such circumstances, but would have made a halt, and waited until the train had passed. But the plaintiff seems to have made his calculation as to the time it would take the train, coming at the speed he describes, to reach the crossing, and without taking into his calculation the abatement of the speed by putting on the brakes, he made the attempt to cross, and had succeeded in doing so, and would have beeu safe, if it had not been for his horse backing the wagon on the track, just at the time train the was passing. The attempt to cross the road under the circumstances, not only showed a want of due care on the part of the plaintiff, but reckless conduct, that amounted to gross neligence; and although :.e was in no fault in the backing of the horse on the track, if he had not attempted to cross, in the face of the impending danger, the accident of the backing of the horse on the road would not have happened, so we are of the opinion his contributory negligence was the canse of his injury, and that being so, it can make no difference whether negligence is imputable to the defendant or not. But we think the defendant company did all that was in their power, and all that could he expected of them to have been done under the circumstances, to prevent the catastrophe.

When the engineman saw the plaintiff approaching the track, he blew the brakes on at the distance of 250 yards, and when in 170 yards, lie sounded the danger signal. When the plaintiff stopped, he blew off the brakos^and then, when in fifty yards of the crossing, we take it, when he saw the horse backing, he blew on the brakes again, and reversed his engine, but it was too late to stop the engine in so short a distance.

It was a freight engine, and had no appliances for working the air-brakes. With air-brakes, he might have stopped it within 75 or 80 yards, but without them, it could not be stopped short of 150. Air-bailees were used by the company on the passenger engines only.

*612 . The plaintiff insisted that it was negligence in the company,, in not having air-brakes on the engine, hut even air-brakes would have been ineffectual to prevent the collision, for the necessity ofreversing the engine the second time, did not occur, according to-the evidence of the engineman, until the train was within fifty yards of the crossing, and was not stopped until it had run one-hundred and twenty-four steps below the crossing, as testified by the plaintiff.

The defendant, it seems to us, did all that was necessary to-prevent the injury, except to stop the train, or bring it to the lowest speed, until the plaintiff could pass. That the law did not require him to do. The engineman sounded the danger signal in full time for the plaintiff to take warning — the brakes were put on twice in the distance of two hundred and fifty yards, and the speed of the train, whose schedule time was thirty-five miles, an hour, and was then running at the rate of fifteen or twenty, was reduced to twelve miles an hour when it passed the crossing. Negligence can only be attributed to a company, when it has notice of the peculiar emergency, in time, by the use of ordinary diligence, the means.being at hand, to avoid the collision. Railroad v. Hunter, 32 Ind., 335, 364.

And in Wilson v. Railroad, 90 N. C., 69, which was an action, against the company for killing a mule, the Judge in the Superior Court, charged the jury: “If the engineer saw the mule that was killed, a quarter or half a mile ahead of the train, and the mule left the tradk when the train was a quarter of a mile-away, and the engineer had reason to believe that the mule was-no longer in danger, and afterwards the mule ran upon the track, in front of the engine, then the defendant was not guilty of negligence, unless the engineer could, by using the appliances at his command, have stopped the train, after the mule had jumped upon the track the second time, so as to prevent the killing.”' The instruction was affirmed by this Court.

We hold that there was no error, and the judgment of the Superior Court is affirmed.

No error. Affirmed.