77 S.E. 966 | N.C. | 1913
Action to recover damages for the negligent killing of plaintiff's intestate, Cicero L. Wyatt. The defendant's car was proceeding north on its way from Salisbury to Spencer, running at the rate of about 12 to 15 miles an hour. The intestate had been seen walking from Spencer to Salisbury, and when struck by the car was sitting on the west side of the track, with his elbows resting on his knees and "bent over to conform to that position." There was evidence on the part of the *26 plaintiff that the night was dark, but not foggy, and that the intestate could have been seen for 300 or 400 feet, and he was actually seen by the witness Austin at a distance of about 400 feet. The intestate's son, who was on the car in search of his father, saw the motorman talking to Mr. Caddell, who was on the front platform, a few seconds before the car struck Wyatt. There was an electric headlight on the car. The track was nearly level for about 150 feet on the south side of the place where Wyatt was sitting, and straight at that point for a mile. The car could have been stopped in about a car's length, (32) and it was stopped within that distance, 25 or 30 feet, that being a car's length. The body, when found, was lying 8 or 10 feet behind the car, between the rails. There was further evidence that the fender on the front of the car, a safety device, was defective, that is, too high and narrow, not properly equipped and out of date. On the other hand, there was evidence for defendant contradicting that of plaintiff. The motorman stated that he was not talking to Caddell, but keeping a proper lookout, and that it was dark and foggy, and for this reason he could not and did not see the man until he got within 30 or 35 feet of him, when he did all in his power to stop the car, applying the brakes and reversing the current, and it was not possible to stop the car sooner than he did. He had received a bell to stop at Carter's, a near-by station, and was "drifting at the rate of 15 miles, and sounding the gong," when he first saw Wyatt sitting on the track. He immediately tried to stop the car by the use of all available means. He said there was no indication to him that Wyatt was helpless or could not take care of himself at the time he first saw him and applied the brakes and reversed the current. The witness for both parties were corroborated. It was admitted that the defendant had a proper headlight on the car that night, and that the car was running at the usual speed.
The court submitted issues, which were answered as follows:
1. Was the plaintiff's intestate, said Cicero L. Wyatt, killed by the negligence of the defendant company, as alleged in the complaint? Answer: Yes.
2. Did the deceased, Cicero L. Wyatt, by his own negligence, contribute to his death? Answer: Yes (by consent).
3. Notwithstanding the negligence of plaintiff's intestate, could defendant, by the exercise of ordinary care, have avoided killing Cicero Wyatt? Answer: Yes.
4. What damage is plaintiff entitled to recover? Answer: $1,250.
The only question in the case was raised by the defendant's motion to nonsuit and his prayer for instruction, which was substantially, that *27
there was no evidence of negligence, or, to be more exact, that Wyatt was in a helpless condition or not in possession of his faculties, so that he could not see and hear, at the time he was sitting on the track, both of which were denied. Defendant duly excepted, and appealed from the judgment. (33)
We may pretermit any extended reference to the evidence as to the defective condition of the fender, which would be sufficient, perhaps, to justify the ruling of the court by which the nonsuit and the instruction were refused. The statute, Acts 1901, ch. 743; Revisal, secs. 2616 and 3801, require that street railway companies shall furnish their cars with "practical fenders" to prevent injuries to those using their tracks. If the company did not comply with this provision, it was evidence of negligence, or a circumstance from which negligence could be inferred by the jury, and if the negligence was found by the jury and was the proximate cause of the intestate's death, it became actionable. Henderson v. Traction Co.,
Passing to the next point, there was evidence from which the jury could well have found that Wyatt was sitting in such a posture that any reasonably prudent man would at least suspect that he was asleep. There is no evidence that he was drunk, or even that he had been drinking, but he was bent over and evidently resting his head on his hands, as his elbows were upon his knees and he was "leaning forward to conform to that position," said the witness Caddell. There was evidence from which it might reasonably have been argued that he was asleep, and if not so, or otherwise insensible, he would have heard the sound of the gong and left the track. The motorman evidently thought that there was danger of injuring him, as he applied the brakes and reversed the current, he testified, as soon as he saw him. These energetic measures to which he resorted indicated his belief that Wyatt was unaware of his perilous situation or the approach of the car; but he was too late. If he looked and he saw him, and his situation was such as to produce the impression that he was oblivious to his surroundings, or if he was talking to Caddell and failed to look, he was negligent.
Edge v. R. R.,
(35) The Court said in a case somewhat like this in its facts: "We do not think that, as a principle of law, it can be stated that where a trespasser is seen sitting upon the track, with his head in his hands and his hands resting on his knees, apparently asleep or unconscious, the presumption is that he will hear and obey the signals of the engineer warning him of the approach of the train. This undoubtedly would be true if the trespasser were walking or standing on the track. In that case the very fact that he was moving or standing up would indicate that he was not asleep or unconscious, but had possession of his faculties, and the engineer would have the right to suppose that he would hear and obey the danger signals. But the same rule would not necessarily prevail where the situation is as detailed in this case. A *29
man sitting on a cross-tie of a railroad track, apparently asleep or unconscious, presents an unusual, not to say extraordinary, spectacle, and we think it was the province of the jury to determine whether or not an engineer of ordinary prudence, seeing a man so situated, ought not to commence checking the train in time to prevent injuring him if it should transpire that he was unconscious or asleep." Starett v.R. R., 110 S.W. Rep. (Ky.), 282. It is true, the jury found that Wyatt was negligent, but even a trespasser on the track, situated as he was at the time of the catastrophe, does not forfeit his life or limb if, after his discovery or by the exercise of proper care, his dangerous position can be seen and realized and the consequent injury to him avoided. He was not committing any offense, but simply placed himself in a place of danger. It may be admitted that he had no right to use the track in that way, but the defendant had no right to kill him because he did. If the jury had found that the motorman was in the exercise of due care, the defendant would have been relieved from responsibility for his death; but unfortunately for the defendant, they did not take that view of the facts, but by their verdict have said that his life could have been saved by the exercise of ordinary care in the use of the means at the motorman's command, making out a case of actionable negligence. Hovins v. R. R.,
We have not discussed the relative and reciprocal rights of the street car company and the public in the use of the railway and the street or public road on which it was laid (Moore v. Street Railway Co.,
No error.
Cited: Tyson v. R. R.,
(37)