92 S.E. 382 | N.C. | 1917
This is an action for the wrongful death of the plaintiff's intestate, Charles B. Skipper, who was run over and killed by defendant's car on College Street, Charlotte, on the night of 25 December, 1913.
Without discussing the other evidence alleged as negligence, it is sufficient to consider the evidence in regard to the fender used by defendant, for if that evidence is true — and it must be taken as true on this appeal — the judgment of nonsuit was erroneous.
There was evidence tending to show that the deceased was lying on his back across the track, as his legs and lower part of his body were uninjured, there being no bruise below his waist and his pants not even torn, while both his arms were cut off and the front wheel passed entirely over his chest. His neck was broken, but there were no bruises or cuts on his head. The track was straight in the direction the car was going, so that a man's body should have been seen on the track by a motorman 200 feet from where the deceased was killed.
The evidence is that car 45, which killed the deceased, was equipped with an old fashioned fender known as the Philadelphia or basket fender, which was the first fender ever put on street cars and which has been in use since about 1892. This fender is merely a bent piece of piping with a rope on it, and is attached to the car in such manner that it cannot be lowered without stopping the car, and can be made for about $5. The fender on the car that killed the deceased was adjusted so that the front of it was 12 to 14 inches above the car track and could not have saved a man lying on the track, no matter how slow the car was running. (491) Even if it touched him, the car and fender would have gone over his body. This was the evidence of the witnesses Gosney and Scott. The defendant's witness Voshall testified the same. The defendant's witness Tongue testified: "The only use of the Philadelphia fender is to save the life of people and objects that are standing up on the track." There was further evidence that this Philadelphia fender would not save a man's life if he was standing on the track unless under exceptional circumstances.
There was evidence that in December, 1913, at the time deceased was killed, there were several "practical" fenders which were in general use in the United States. Two types of these were well known and used in this State, i. e., the "Providence mechanical-drop fender" and the "H. B. Life Guard." The Providence fender attached to the front of a street car is suspended from 4 to 8 inches above the rail of the track, and a motorman by pressing a pin with his foot can drop the fender instantly so that it will run along the rails, and the evidence was that in such case it would be practically impossible for a man lying down or standing up on the track to be run over by the car; and if it was *541 running at the rate of only 4 or 5 miles an hour, as the defendant's witness testified this car was running, a man lying on the track would not be injured at all. This was testified to by several witnesses, especially by the defendant's witness Voshall, a graduate of Drexel Institute in Philadelphia, who said: "Assuming that the jury should find from the evidence in this case that this man was lying on the track in front of the street car, as it approached him, at the rate of 4 or 5 miles an hour, and this track was level, and if the car had been equipped with the Providence fender, and that fender had been dropped on the track before coming to the man lying on the track, in my opinion, it very likely would have scraped him up and saved his life. Assuming the same state of facts, I will say that if the H. B. Life Guard had been used, I think it would have picked him up and saved his life."
There was evidence that the Providence fender has been in use in Wilmington, N.C. since 1903, and that it has been generally used in the principal cities of the country. There was evidence that it was entirely practicable to equip the car which killed the deceased with the Providence fender or with the "Life Guard" either of which, if used, would save the life of a person down on the track or knocked down by the car and would prevent his being run over, whether he was standing on the track or lying down. There was evidence that "Life Guard" fender was in very general use in this country, and was used in this State in Wilmington, Goldsboro, and New Bern. There was evidence of numerous instances in which the "Providence fender" and the "Life Guard" had picked up people who were on the track and saved their lives. The witness Scott testified that even if the car had been running at 10 (492) miles an hour, double the speed of this car, these fenders would save the lives of eighty people out of a hundred on the track.
There was further evidence along this line and evidence in contradiction. It was in evidence that the fender used would cost from $5 to $10, and the Providence and Life Guard fenders of later invention would cost from $30 to $40. The statute, Revisal 2616, provides: "All street passenger railway companies shall use practical fenders in front of all passenger cars run by them," with provision that the Corporation Commission could make exemptions when "in their judgment the enforcement of this section is unnecessary." The burden is on the defendant to show such exemption, Powers v. R. R.,
In Ingle v. Light and Power Co., at this term, the Court said: "There was also evidence that in the violation of a law which required the use of `practical fenders in front of all passenger cars,' this car was not so equipped, and this failure was negligence," citing Henderson v. TractionCo.,
In Powers v. R. R.,
The evidence should have been submitted to the jury, and the court erred in intimating that he would instruct the jury, "if they (493) believed the evidence, to answer the first issue," as to the negligence of the defendant, "No." Henderson v. R. R.,
The motorman of a street car must be more diligent and careful for the safety of pedestrians than a locomotive engineer, for, as said recently inIngle v. Light and Power Co., supra, the locomotive has exclusive right of way and is traveling on its own property, where, as a rule, pedestrians have no right to be, unless crossing a track or by recognized custom are using the track with the implied permission of the company, while the street railways are using the streets to which the public have the same right.
The court also erred in instructing the jury that if they believed the evidence to answer the second issue, as to contributory negligence, "Yes," for under the statute, Revisal, 483, the burden of this issue was on the *543
defendant, who is required to prove it by the preponderance of the evidence, Cogdell v. R. R.,
Independent of the Statute requiring the use of "practical" fenders, and even if the jury should have found that the deceased was guilty of contributory negligence, the third issue should have been submitted to a jury, whether, notwithstanding the negligence of the deceased, the defendant could have avoided killing him. In Lloyd v. R. R.,
The Court held that a failure to equip an engine with a headlight at night is a continuing negligence. Powell v. R. R.,
Without any statute, if a proper fender would have saved life, (494) its absence was a continuing negligence which would have made the defendant liable if the proximate cause of the injury. Greenlee v.R. R.,
One of the definitions of "practical" given in Webster's Dictionary is "Valuable for use." We think, as already said, in this context it means "efficient," and is at least the equivalent of "the most approved appliance in general use and necessary for safety." Witsell v. R. R.,
The judgment of nonsuit must be set aside and the cause submitted to the jury with instructions in conformity with this opinion.
Reversed.
18 — 173 *544
Cited: Sultan v. R. R.,