114 N.C. 728 | N.C. | 1894
Lead Opinion
1. We are of the opinion that there should be a new trial upon the charge of his Honor on the third issue. This issue was intended to present to the jury the principle of Davies v. Mann, 10 M. & W., 546, and the jury were instructed that the same law and facts which would constitute negligence under the first issue would be applicable to the third issue. The evidence upon the first issue tended to prove negligence on the part of the defendant by reason of its failure to keep a proper lookout in order to discover the deceased in time to avoid the accident, and also because of its failure to properly equip the train by providing sufficient brakes and brakemen. Now, as the doctrine of Davies v. Mann is based upon some omission of duty occurring after the negligence of the deceased, Gunter v. Wicker, 85 N. C., 310 (which negligence was found by the Court on the second issue), it is plain that there 'was error in blending these two essentially different elements of negligence — the one existing prior and the other occurring subsequently to the negligence of the deceased — and applying them indiscriminately to the third
2. We are also of the opinion that there was error in ignoring that universally established principle in the law of contributory negligence which imposes upon one who has voluntarily disabled himself by reason of intoxication the same degree of care and prudence which is required of a
Nor can we perceive any similarity between the intoxicated man and a cow that has strayed upon the track, the cow, of course, not being the author of its insensibility to danger, and the owner really guilty, as held by this Court, of no negligence whatever in turning his cattle out to graze.
The principle of which we are speaking has never been denied by this Court as a distinct ground of decision, though the case of a drunken man was used in Deans’ case (107 N. C., (386), as one of the illustrations of certain very important principles in the law of negligence, which it will be seen hereafter wre fully approve.
The point did not arise in that case, as it was not found or admitted that the deceased was intoxicated, and the ruling below was simply to the effect that upon the whole testimony the defendant owed no duty to look out and discover trespassers upon the track, and therefore was-not guilty of negligence. The ruling of his Honor was regardless of the fact whether the deceased was drunk or sober, and it was necessary that this Court should declare the duty of railroad companies as to persons on the track at places
In Railroad v. Smith (52 Texas, 179) the injury was inflicted upon a man who was walking upon the railroad track and was negligent. He was held under the circumstances to be guilty of contributory negligence, and it is
In Railroad v. Miller (26 Mich., 279) the action was brought for injuries received by the plaintiff in a collision between a locomotive and the wagon in which the plaintiff was riding. There was nothing in the case about intoxication, but in the course of his learned opinion Judge Ciffiis-tiaNCY, in discussing the general subject of negligence, remarked that if the engineer “ sees ” a person in peril on the track whom he has reason to believe to be badly intoxicated, or otherwise insensible to danger, he must use all the means in his power to stop the train and avoid a collision.
In Railroad v. St. John (5 Sneed, 504) the accident complained of was-to a child eight years of age, and in Weeks v. Railroad. 56 Cal., 513, the accident was to a child six or seven years of age. In neither of those cases was the effect of intoxication discussed, and they were evidently cited for the purpose of sustaining the rule imposing the duty upon the engineer of keeping a lookout for persons along the line of the track, and upon that question they are in point.
To the same effect is the much-cited case of Isabel v. Railroad (27 Conn., 393), but as bearing upon the particular question under'consideration it may be noted that the action was brought for the killing of cattle straying upon the track, and that the duty which the law imposes upon an intoxicated person was in no way involved in the decision. The following language, however, appears in the discussion of the general subject: “Or, an intoxicated man is lying in the traveled part of the highway, helpless if not unconscious: must I not use care to avoid him ? May I say that he has no right to encumber the highway, and therefore carelessly continue my progress, regardless of consequences? Or, if such a man has taken refuge in a field of
When Mr. Wood (2 Vol., 1464) speaks of the duty which is due to persons lying on the track in connection with a child or an animal, he very clearly did not intend to say that when a drunken man is not discovered he is to be absolved from the consequences of his own negligence, as the onl}T case ho refers to of persons lying on the track is the case of Meeks v. Railroad, supra, where a child lying on the track was run over and injured. That he did not mean that a drunken man would be excused from exercising the same care that is required of a sober man is evident from his explicit statement of the contrary doctrine, which we have heretofore quoted and which is sustained by-all of the authorities. This is also perfeetty manifest from the fact that on the very next page he quotes with approval that part of the opinion in Railroad v. Miller, supra, which contains the language of Judge Chkistiaxoy to which we have referred, and which indicates that the railroad company is only liable for the failure of duty after the discovery of the drunken man. The author says: “And this we believe is an accurate statement of the duty of railway companies under the circumstances referred to.”
As we have already intimated, the. fact that the elementary principle referred to seems to be seriously disputed is the only reason we have said so much in its support, as we believe it to be established beyond all question by the consensus of judicial decision as well as the opinion of all of the authors upon the subject. If, then, the same degree of care is required of the deceased “ as is required of a sober man under the same circumstances ” it is plain that his negligence was concurrent with that of the engineer, and he was therefore guilty of contributory negligence. Mc-Adoo’s case, supra, and the authorities cited. Indeed, as we shall hereafter see, his negligence, operating as it did up to the moment of the collision and after the decisive negligence of the engineer, was really subsequent negligence and goes far beyond what is sufficient to bar a recovery. Had the deceased been looking and listening as he was required to do, he would have had ample time to have escaped from his peril after the engineer had passed the point when his efforts would have been unavailing to save him. Under this view, he being in' contemplation of the law able to avoid the consequences of the prior negligence of the defendant, it would seem that, if the train had been injured by the obstruction, his negligence would have been the proximate cause of the accident, and the defendant and not the deceased would have been entitled to recover. A sober man, as we have seen, very clearly could not have recovered, and is a premium to be offered to negligence caused by the self-imposed disability of drunkenness, which prevents-one from using ordinary care by look
We feel very sure that his Honor’s failure to apply the principle which we have been discussing entitles the defendant to a new7 trial.
3. While the foregoing considerations are, in our opinion, sufficient to dispose of this appeal, we deem it our duty, in view of the argument of counsel, to express our approval of certain general principles laid down in Deans’ case, supra, and also our view's as to how7 they should be applied. Leaving, then, the facts of this particular case behind us, w7e will state that one of the principles referred to is that winch imposes upon the engineer of a railroad train the duty of keeping a vigilant lookout on the track in order to discover and avoid any obstructions that may be encountered thereon. This duty is due to the passengers and, when consistent with the necessary attention of the engineer and other employees on the engine to its safe and proper management, the duty is likewise due to the owner of cattle running at large, to the ow'ner of other property, w-hich under certain circumstances may be on the track, and also, as a general rule, to persons who may be on the same at places other than crossings. When under the particular
4. AVe have thus dwelt upon the existence and nature of this duty because it is impossible to discuss the doctrine of contributory negligence, even to a limited extent, unless we have a clear conception of this constituent element, as well as of other terms and definitions relating to the subject. Indeed, it may be safely remarked that no science is more dependent upon the accuracy of its terms and definitions than that of the law. Looseness of language and dicta in judicial opinions, either silently acquiesced in or perpetuated by inadvertent repetition, often insidiously exert their influence until they result in confusing the application of the law, or themselves become crystallized into a
Mr. Beach expresses the same view and adds that “the attempts of the .Judges to ring a new change, or to find some novel and original phrase in which to express the rule that whenever the negligence of a plaintiff proximately contributes to cause the injury for which he seeks to recover damages he has no cause of action, has thrown the law into confusion.” Contributory Negligence, p. 33; Pollock Torts, 295; Bishop Non-contract Law, 459; 2 Wood, 1447; Wharton Neg., 323; 4 Am. and Eng. Enc., 18, 19, 27, notes. It must also be observed that shortly after the decision of Davies v. Mann Lord CAMPBELL, in 5 El. & Bl., 195, understood the doctrine to be the same as stated above. These views have been distinctly adopted by this
Recurring, however, to the main question, it becomes important to determine what is a proximate cause within the meaning of the rule, and it was to this point that the learned argument of counsel' for the defendant was chiefly addressed. In Farmer v. Railroad, supra, and the authorities cited it will be seen that this depends upon whether “ the negligent act of the plaintiff precedes in point of time that of the defendant,” and this is the view, according to
That a discovery of the danger is not necessary to make the negligence of a plaintiff the proximate cause of the injury is evident from the case of Butterfield v. Forester, 11 East, 60, the earliest decision upon the subject of contributory negligence, as the negligence there which defeated a recovery was the failure of the plaintiff by the exercise of ordinary care to discover and avoid a collision with an obstruction which the defendant had negligently placed in the street of Derby. So, on the other hand, in the case of Davies v. Mann, it did not appear that the defendant discovered the historic donkey fettered upon the highway, and it seems that the failure to discover and avoid him was the true ground of the action. It is also to be remarked that in the first case in which the principle of Davies v. Mann was applied by this Court it did not appear that the defendant saw the plaintiff in the place of danger, and it was held that although the plaintiff was negligent, yet it was previous to.that of the defendant, who by the exercise of ordinary care might have avoided the injury. Gunter v. Wicker, supra. AYe think that a plain and simple statement of the rule is to be found in the work of Shearman & Redfield on Negligence, Volume I, section 99. It is that “The party who last has a clear opportunity of avoiding the accident, notwithstanding the negligence of his opponent, is considered solely responsible for it.” This is entirely consistent with our doctrine, as the negligence of the party injured in such a case may well be considered to have preceded that of the defendant in point of time. See Cooley on Torts, 70, 71, which is cited and commented upon in Clark v. Railroad, 109 N. C., 449; Bishop Non-contract Law, 463.
This view is but another way of stating the principle that “where the negligence of the person inflicting the
Applying the rule which we have stated to accidents upon railroad tracks, it may be illustrated as follows: First, there must be a duty imposed upon the engineer, as otherwise there can be no negligence to which the negligence of the injured party is to contribute. The duty under consid-' eration is to keep a vigilant lookout (consistent with other necessary duties in running the train) in order to discover and avoid injury to persons who may be on the track and who are apparently in unconscious or helpless peril. When such a person is on the track and the engineer fails to discover him in time to avoid a collision, when he could have done so by the exercise of ordinary care, the engineer is guilty of negligence. The decisive negligence of the! engineer is when he has reached that point when no effort on his part can avert the collision. Hence, if A, being on the track and after this decisive negligence, fails to look and listen and is in consequence run over and injured, his negligence is not concurrent merely but really subsequent to that of the engineer, and he cannot recover, as he and not the engineer has “the last clear opportunity of avoiding the accident.” If, however, A is on the track (and here it may be remarked in passing that being on the track is not
These illustrations show how the rule of Davies v. Mann operates in cases where the primary duty is to keep a lookout and to discover, and the principle we have stated should be applied by the Courts to the various phases of fact arising upon the testimony, and juries should not be left to determine the case simply under the general language of the rule. This, it seems to us, is the only way in which the rule can be properly applied in the presence of a duty like that which is imposed upon railroad companies as to persons or property upon the track. To say that the principle of Davies v. Mann does not apply until the discovery of the clanger is to practically abrogate the duty. It may be here observed that a recovery is permitted by a person who, being on the track when there is no immediate danger, is stricken down by the visitation of Providence, when he might have been discovered by the exercise of_ ordinary care. There being no negligence in such a case by simply going upon the track, there is no contributory negligence, and the same is true as to children of such tender years as to be incapable of discretion.
We have not attempted to discuss the law of contribu
For the reasons given in the first two divisions of this opinion we think there should be a New Trial.
Dissenting Opinion
dissenting: I concur witli the Court in so far as the opinion adopts and approves the doctrine laid down in Deans’ case, though the reasoning may not in all respects be in accord with my views. But I do not assent to the conclusion that railroad companies are relieved of liability for negligently killing a drunken man who is lying insensible upon the track, when under exactly similar circumstances a sober man, who had fallen asleep at the same place, would have the right to recover. I freely concede that the Court has found abundant authority and could have arrayed many more citations from text-books and decisions of other States to sustain its conclusion and justify the announcement that the dicta in a number of cases decided here should not bo followed. But the same reasoning would warrant us in turning back the dial and not only overruling such dicta as that companies must use air-brakes on passenger cars, but many actual rulings based upon the idea that the definition of negligence under given circumstances is not fixed and immutable, but must be modified as we discover its want of adaptability to new conditions.
But it is urged, first, that railway companies owe no such duty to a man whose sleep is due to drunkenness as to one who soberly and deliberately yet carelessly lies down on the track; second, that in fact a drunken man, though sound asleep, is not excused by law for drunkenness but is deemed to be willfully remaining on the track and thereby co-operating consciously with the careless servant of a company in causing his own injury.
Applying the harsh doctrine of the criminal law, adopted and adhorred to only in order to protect life, person and property from the consequences of fraud and violence, it is insisted that drunkenness is an aggravation rather than an excuse for carelessness as for crime. But, as far as it is consistent with the public safety to do so we find that the law
The law lends its sanction tono such rule as that; where the conduct of a drunken man is neither criminal nor tortious he forfeits any right or remedy to which he would he entitled if sober. Discussing this doctrine, then, as enunciated by Lord Penzance, and conceding the possibility of the existence of a precedent contributory negligence, which does not defeat recovery as it would if concurrent with the negligent act of a defendant, the question arising here is whether the careless act of a drunken man who is already asleep upon the track when the engineer first has opportunity to see and understand his condition is guilty of concurrent contributory negligence. It is familiar learning that a deed or other written agreement executed by one so drunk as to be unconscious of what he was doing could be avoided even in a court of law under our former system. A contract to be valid must necessarily involve the intelligent assent of the mind of him who is to be bound by it, and it is for this reason that “total drunkenness is now held to be a complete defence” when an action is brought against him to enforce it. Morris v. Clay, 8 Jones, 216; Cook v. Clayworth, 18 Vesey, 12. “Where the intoxication rises to the degree which may be called excessive drunkenness where a party is utterly deprived of his reason or understanding when he enters into it,” Justice Story says that “equity will relieve against it because in such a case there can, in no just sense, bo said to be a serious and deliberate consent on his part, and without this no contract or other act can or ought to be binding by the law of nature.” 1 Story Eq. Jur., sec. 231.
The negligence of a drunken man, who has been insensible for some time, is not to be distinguished from the sup-
“An intoxicated man” (said the Court of Connecticut by way of illustration in Isbel v. Railroad, 27 Conn., 393) “is lying in the traveled part of the highway, helpless if not unconscious, must I not use care to avoid him? May I say he has no right to encumber the highway and therefore carelessly continue my progress regardless of consequences?” Referring to this high authority Mr. Wood (2 Vol. Ry. Law, p. 1267, sec. 320) says: “The doctrine of this case has been approvingly cited by the Courts in several cases, and seems to us to 'define the true rule of duty and obligation resting upon railway companies as well as to persons lying upon their tracks, and young children as to animals. The rule may be said to be that a railroad company is bound to keep a .reasonable lookout for trespassers upon its track, and is bound to exercise such care as circumstances require to prevent injury to them. If a person seen upon the track is an adult person and apparently in the possession of his or her faculties, the company has a right to presume that he will exercise his senses and remove himself from his dangerous position, aud if he fails to do so and is. injured, the fault is his own, and there is, in the absence of willful negligence on its part, no remedy.” In
From these authorities we gather the rules:
1. That it is the duty of railway companies to keep a reasonable lookout (at common law as well as where there is a statute).
2. That they owe this duty to trespassers upon the track as well as to others.
3. That if by keeping this reasonable lookout the engineer discover a person that he knows to be, or has good reason from his appearance to believe to be, badly intoxicated, he must use all the means at his command to stop the train.
These authorities therefore sustain our position in Deans’ case, Clark’s case and others that have followed in the same line, using almost the identical language that we are urged to modify. It will be seen that it occurred neither to the Supreme Court of Connecticut nor to Mr. Wood (who is one of the fairest of all American writers upon the law of railroad corporations) to draw a nice distinction between the duty of keeping an outlook for town trespassers and country trespassers, for sleepy men and drunkards.
It is needless to multiply authorities to meet the numerous citations offered by the Court. It is sufficient for me that this Court has declared that a company would not be relieved of the imputation of what would ordinarily be actionable carelessness on the part of its engineer because the victim of his negligence happened to be a slave to an unfortunate habit. If it is the duty of an engineer to see what by reasonable care ho can see in his front, and to avoid injury that proper watchfulness would enable him to avert, we see no reason for counting the obsolete cases in musty digests to justify a nice distinction that commends itself, neither to our sense of right and justice nor our reason. It is no more unreasonable to require an engineer to look out for the safety of a drunkard than for the protection of one who, in the full possession of his faculties, willfully lies down to sleep in a dangerous position. When a Court has laid down a principle that accords with the highest conception of what is morally right and is supported by some authority I cannot concur in acknowledging that it is our duty to go back and count and analyze the cases cited by the author relied upon in the Court to sustain us, in order to destroy the force of our own dicta, or overrule our settled decisions, unless the principle overruled has worked wrong and injustice in its enforcement.
Following suggestions originating chiefly in Meredith v. Iron Co., 99 N. C., 580, and McDonald v. Carson, 94 N. C., 500, and the plain intendment of the Legislature, this Court, in Emry v. Railroad, 102 N. C., 224, laid down the rale that the.nisi 2>rius Judge might in his discretion submit all or only a portion of the issues raised'by the pleadings, provided those adopted were such as to afford opportunity to pass upon any view of the law arising out of the evidence, and were sufficient as a basis for the Court to proceed to judgment. This ruling has since relieved us of difficulty in many cases and promises to remove in the near future what has heretofore proven a fruitful source of controversy. The ruling upon this point has been approved in Lineberger v. Tidwell, 104 N. C., 510; McAdoo v. Railroad, 105 N. C., 151; Bond v. Smith, 106 N. C., 564; Carey v. Carey, 108 N. C., 271; Waller v. Bowling, 108 N. C., 295; Blackwell v. Railroad, 111 N. C., 153, and in several other cases. In Scott v. Railroad, 96 N. C., 428, it was stated by Chief Justice Siiith, delivering the opinion of the Court, that while two issues might be submitted, one embodying the question whether the defendant has been negligent, and another whether the plaintiff has been negligent, the same end might be attained by submitting simply the question, “Whether the defendant’s negligence was.the cause of the injury,” and telling the jury if they found it due to the plaintiff’s carelessness to respond in the negative. In Kirk v. Railroad, 97 N. C., 82, it was held error, after
But it is insisted that all of these cases, too, must be overruled because, as -is assumed, the Judge below was led into an illogical and erroneous charge by the suggestions of the Court in the opinions as to the possible or proper issues that might be submitted in actions brought for negligence.
By reference to the case of Bottoms v. Railroad, 109 N. C., 73, will be found three issues that are framed substantially in accordance with the suggestion of this Court, and which the most illiberal critic would not venture to say led to confusion or to any illogical results. On the contrary, it can be seen at a glance that they were so framed as to aid the jury in understanding the several stages of the findings upon which the ultimate liability depended. It has been suggested heretofore that perhaps this system presented the questions involved so clearly as to afford opportunity to an unfair jury to give expression to their prejudices in the verdict, but never that it might, when properly understood, give láse to confusion. When verdicts are against the weight of evidence, or damages excessive, the corrective is in the power of the trial Judge to set aside verdicts-— a power which Judges who are fair and just do not hesitate to exercise — and of the Legislature to provide as far as may be for the selection of intelligent and unbiased j urors.
I concur with the Court in the ruling that the doctrine laid down in McAdoo’s case should be followed, but it is doubtful whether the language of the issues can be fairly construed so as to show that the charge of the Judge was in conflict with the principle there enunciated.
Dissenting Opinion
dissenting : When a person is walking on the track the engineer is to presume that upon sounding the signal he will get off and is not called on to slacken speed or stop (Meredith v. Railroad, 108 N. C., 616) unless he recognizes him in time as an insane or deaf man, or unless it is a child without sufficient discretion. Bottoms v. Railroad, at this Term.
If a man, in a paroxysm or from drunkenness, or asleep, is lying on the track and the engineer sees him in time to avert the injury and does not do so, the company is liable. Why? Because the negligence of the man does not authorize the engineer to kill him or cripple him and if, after discovery of his helpless condition, when made in time to avoid injury, the man is killed or crippled, such killing or crippling is 'wanton or reckless and the company is liable, though of course the negligence of the party on the track continues up to the very moment of the impact.
• Now, take this state of facts as found by the jury. The man is helpless, lying prone upon a railroad track and the engineer, by the exercise of ordinary caro in keeping a proper lookout, could have discovered the helpless man in time to avoid killing or crippling him, but because he was not using ordinary care and was negligent in that duty the engineer does not in fact see the helpless man in time and runs over him: is not the company liable? But it is said that the company owes.no duty to the man lying-helpless on the track. This plea is the same as one made of old, “Am d my brother’s keeper?” And we are told that that brother’s blood “cried from the ground.”
In Clark v. Railroad, 109 N. C., 430, it was held (it is true by a divided Court) that the railroad company was liable for killing a man on a short trestle, though the man was walking. The company was held responsible, though the engineer on a rapidly moving train could hardly have
Population is increasing and likewise the speed and rapidity of railroad trains. It will' be more and more impossible to keep people off’ the track as the country settles up. Their being there is no license to kill or crqrple them on sight. The railroad companies have the right of way over their own tracks, but they must use it with reason and with a regard to human life. “Sic utere tuo, ut non alienum laeclas.” If the man is walking on the track he is reasonably to be expected to get off in time, especially if the whistle is sounded. If he does not, clearly the company is not liable! The man is negligent and the company shows neither wantonness nor recklessness. If the man is crossing the track, he must look and listen. If he does not and the engine strikes him, it is clearly his fault and there is no recklessness or wantonness on the part of the engineer, for as the man has only five feet to go clearly the engineer could not see him in time to avoid striking him. If the party struck is a mere child, or live stock, and the engineer could have seen them in time to avoid
Respect for the doctrine of stare decisis forbids us to so soon overrule the decisions of this Court in the late cases of Deans v. Railroad, 107 N. C., 686; Clark v. Railroad, 109 N. C., 430, and others on that line.
The decision in Deans v. Railroad, supra, imposed no additional duty on railroad companies. The company was, and is, liable for a failure to keep a lookout if thereby injury
Concurrence Opinion
I concur in the conclusion reached by the Chief Justice that there should be a-now trial, but I do not concur in any expressions which indicate that there is a. duty upon the defendant’s servant, in the absence of reasonable ground of apprehension, to anticipate that a person, sui juris, will voluntarily expose himself to danger.'