Sawyer v. Roanoke Railroad & Lumber Co.
58 S.E. 598
N.C.
1907
Check Treatment
*27 IToice, L,

after stating tbe case: Tbe Judge below imposed upon tbe defendant tbe duty of keeping an outlook along the track in tbe direction in which tbe train was moving, and in this connection charged the jury that, if they found tbe facts to be that tbe defendant company was operating a railroad for tbe purpose of hauling logs, and operating an engine and cars, tbe law imposed upon it tbe duty to keep a lookout for tbe purpose of avoiding injury to persons on tbe track apparently unconscious; and if it failed in this duty it was negligent, and if such failure was tbe real and proximate cause of tbe plaintiff’s injury they would answer tbe first issue “Yes,” etc.

It is urged for error that, on account of tbe remote placing of this occurrence, with no one ahead along tbe track or likely to be there, except its own employees, whom they bad every reason to believe were there, alive and in health and in proper possession of their faculties, tbe Judge should have charged tbe jury that, upon tbe entire testimony, if believed, there was no negligence shown on tbe part of tbe company, and tbe jury should answer tbe first issue “No.” But we .are of opinion, and so hold, that the charge of tbe Court correctly expresses tbe law applicable to tbe case, and that this assignment of error cannot be sustained. These logging roads, in various instances and in different decisions, have been described and treated as railroads and held to tbe same measure of responsibility and tbe same standard of duty. Hemphill v. Lumber Co., 141 N. C., 487; Simpson v. Lumber Co., 133 N. C., 96; Craft v. Lumber Co., 132 N. C., 156. And it is well established that tbe employees of a railroad company engaged in operating its trains are required to keep a careful and continuous outlook .along tbe track, and the company is responsible for injuries resulting as the proximate consequence of their negligence in tbe performance of this duty. Bulloch’s case, 105 N. C., 180; Dean's case, 107 N. C., 686; Pickett's case, 117 N. C., 616. This particular duty arises *28 not so mncb from tbe fact that railroad companies are common carriers or quasi public corporations as from tbe bigb degree of care imposed upon them on account of tbe dang’erous agencies and implements employed and tbe great probability that serious and in many instances fatal injuries are almost certain to result in case of collision. As said by Burwell, J., in Haynes v. Gas Co., “The utmost degree of care, so far as skill and human foresight can go, is required, for tbe reason that a neglect of duty is likely to result in great bodily barm and sometimes death to those who are compelled to use that means of conveyance.” And quoting from Ray on Negligence, page 53, “As a result of the least negligence may be of so fatal a nature, the duty of vigilance on the part of the carrier requires the exercise of that amount of care and skill in order to prevent accidents.” These reasons apply with equal force to logging roads when their trains are operated by steam or other mechanical power, and are of such exigent nature as to impose this requirement of keeping an outlook as an arbitrary duty, whether in remote or more populous localities. Certainly, on the facts disclosed by this testimony, there should be no relaxation of the rule. Some of the employees were ahead, engaged in cutting out the way; others in laying down the track; yet others were at work at the end of the track,' with another machine of the same kind. They were engaged in rough work, and not unlikely to be in and upon the track at different places, and at times and in different ways to be down and helpless upon it; and it was a negligent act to back a train in their direction without keeping an outlook. The duty is imposed because some injury, and serious injury, was likely to follow from its neglect; and when such injury does follow, it is no answer that the injured party was down and helpless from some unusual or unexpected cause. Drum v. Miller, 135 N. C., 204; Hudson v. Railway, 142 N. C., 198; Horne v. Power Co., 144 N. C., 375. As stated in Hudson v. Railway, the correct doctrine is as fol *29 lows: “In order that a party may be liable for negligence, it is not necessary that he conld have contemplated or even been able to anticipate the particular consequences which ensued, or the precise injuries sustained by the plaintiff. It is sufficient if, by the exercise of reasonable care, the defendant might have foreseen that some injury would result from his act of omission, or that consequences of a generally injurious nature might have been expected.”

Defendant further contends that, on the entire evidence, the plaintiff was guilty of contributory negligence, and objects to the following part of the charge on that question: “If you find from the evidence that defendant was baching its train down its track, that the plaintiff fell on the track in an apparently unconscious condition, that when he so fell he was far enough from the train for it to have been stopped in time to have avoided the injury, that the defendant failed to keep a lookout, and that if a lookout had been kept the defendant, by the exercise of ordinary care, could have discovered that plaintiff was on the track in an apparently unconscious condition in time to stop its train and avoid the injury, then the ■ plaintiff’s negligence, if any, would not be contributory; and if you so find you will answer the second issue ‘No.’ ”

We think this position is also correct and clearly states the law applicable to the issue. A negligent act of the plaintiff does not become contributory unless the proximate cause of the injury; and, although the plaintiff, in going on the track, may have been negligent, when he was struck down and rendered unconscious by a bolt of lightning his conduct as to what transpired after that time was no longer a factor in the occurrence, and, as all the negligence imputed to defendant on the first issue arose after plaintiff was down and helpless, the responsibility of defendant attached because it negligently failed to avail itself of the last clear chance to avoid the injury; so-its negligence became the sóle proximate cause of *30 tbe injury; and tbe act of tbe plaintiff in going on tbe track, even though negligent in tbe first instance, became only the remote and not tbe proximate or concurrent cause. This responsibility of a defendant by reason of a negligent failure to avail itself of tbe last clear chance to avoid an injury is sometimes submitted to a jury under a separate issue; and, while it is sometimes desirable, it is not always necessary so to present it, and tbe trial Judge, in bis discretion, as be did in this instance, may submit tbe proposition and have same determined by bis charge on tbe issue as to contributory negligence. Tbe same course was pursued by tbe trial Judge and approved on appeal in Pickett’s case, 117 N. C., 616. Tbe defendant in tbe present case has been fixed with responsibility because of its negligent failure to avail itself of tbe last chance to avoid injury, and for that alone, and tbe Judge below properly told tbe jury, in effect, that if this were true tbe act of tbe plaintiff in going on tbe track in tbe first instance, even if negligent, would not bar a recovery, because only the remote cause of tbe injury, and therefore not contributory.

Tbe Court below also correctly ruled, that plaintiff could put in as an admission on the part of tbe defendant a section of tbe answer, as follows: “And said machine ran upon plaintiff, injuring bis arm so that same bad to be amputated.” This is an admission of a distinct and separate fact relevant to the inquiry, and, though it was only a part of an entire paragraph, defendant was not required to put in qualifying or explanatory matter inserted by way of defense, and which in no way modified or altered tbe fact. Hendrick v. Railroad, 136 N. C., 510; Lewis v. Railroad, 132 N. C., 382.

There is no error, and tbe judgment is affirmed.

No Error.