Smith v. . R. R.Smith v. . R. R.
Associate Justices AVERY and CLARK dissenting, arguendo. The issues submitted to the jury, and the responses, were as follows:
1. Was Joseph Smith killed by the negligence of the defendant? Answer: “Yes.”
2. Did the said Joseph Smith, by his own negligence, (730) contribute to his own death? Answer: “Yes.”
3. Could the defendant, by the exercise of reasonable care and prudence, have avoided the injury? Answer: “Yes.”
4. What damage, if any, is the plaintiff administratrix entitled to recover? Answer: “$1,000.”
It was in evidence that the engineer blew the locomotive whistle for the crossing, and in a few minutes blew it again, the brakes were applied and the train stopped. The train, which was a long one, was running 30 to 40 miles an hour, according to one witness, and 20 or 30 according to another. There were, besides the locomotive, ten or twelve box and flat cars in front, then the second-class car, and then a first-class car. When the train stopped, the remains of the deceased were under or opposite to the car in front of the second-class car. There were no air-brakes, but the brakes in use were good ones.
It was in evidence that deceased was addicted to the use of liquor,
The engineer testified for the defendant that upon seeing an object on the track at a distance of about 150 yards he blew distress whistle to make it get off, blew for brakes, reversed the engine and used steam-brake on engine, continuing to blow the distress whistle; that he discovered it to be a man, but could not stop the train before it ran over deceased. Whistles were blown, but the man did not move. As soon as he saw the man did not move, the engineer blew whistle and applied brakes, and the train slackened. (731)
On cross-examination, the engineer said: “It was about 150 yards from the crossing to where deceased was killed. I blew for first crossing 150 yards back; saw object as I was going over the last crossing. I felt the jar of the brakes. Had two brakemen and fourteen cars in all. There were no brakes on the flat cars; was running about 20 miles an hour. When train ran over deceased it was running about 4 miles an hour. I could not stop the train at speed I was running in less than 150 yards. If I had had air-brakes I could have stopped. Ordinarily, trains like the one I was in charge of have hand-brakes.”
Other witnesses testified to the sharp and quick blowing of the distress signals and that the train was stopped quickly by the brakes.
His Honor instructed the jury, among other things, as follows:
“It is the duty of the engineer or fireman, in running the train, to keep a lookout in front of the train to see objects on the track in order to avoid accidents, and if they fail to do so, this failure is negligence on the part of the company, and if an injury results from a failure to keep this lookout the company will be liable; and if you find that the plaintiff‘s intestate was run over by the train of the defendant and killed because of a failure of the officers in charge of and running the train to keep this lookout and see deceased lying on the track, it would be negligence, and you will answer the first issue `Yes.’
“If you find the facts to be that, by reasonable diligence in keeping a lookout, the engineer could have seen the deceased lying on the track in time to have stopped the train before it ran over the deceased and he did not stop it, it would be negligence, and you will (732) answer the first issue `Yes.’
“The fact that the defendant did not have air-brakes on the train is not negligence.
“It was the duty of the defendant to have sufficient brakes and appliances to have stopped the train in emergencies of this character in a
“It is insisted by the defendant that the train was properly equipped and manned for trains of the character of this one, being a mixed train of passenger and freight cars. The plaintiff insists that two brakemen to fourteen cars was insufficient. This is a question for you. If you find from all the evidence in this case that two brakemen and the steam-brake on the engine were sufficient to properly run the train and control it, then the failure to have more is not negligence; but if you find from all the circumstances growing out of this evidence, as you find it to be, that two brakemen, the steam-brake on engine and the number of brakes you find were on this train were insufficient to properly run and control it, then the failure to have a sufficient number would be negligence in the company.
“If you find that the train could have been stopped with the appliances with which it was equipped, after the deceased could by reasonable diligence have been seen, and it was not stopped, but ran over deceased and killed him, it would be negligence, and you will find the first issue `Yes.’
“The question for you as to the outlook is not whether the engineer did see the deceased lying on the track, but whether he could by the exercise of reasonable diligence have seen him; and if he could (733) by reasonable diligence have seen him in time to stop the train, but did not in fact see him in time to stop it, it would be negligence.
“If you find the engineer kept a lookout and saw the deceased lying on the track as soon as he could have seen him, and immediately used all the appliances he could control in order to stop the train, and could not do so, it would not be negligence, and you will answer the first issue `No.’
“If you answer the first issue `No,’ you need not answer the others, for unless the deceased came to his death by the negligence of the defendant the plaintiff cannot recover.
“If you answer the first issue `Yes.’ I instruct you to answer the second issue `Yes’ if you believe the evidence in this case.
“If you answer the first and second issue `Yes,’ then come to the third. On this issue the same law is applicable that I have laid down to you as applicable to the first, and the facts that would constitute negligence under the first issue would constitute negligence under the third issue; so that, if the facts proven satisfy you that the defendant was guilty of negligence, and you answer the first issue `Yes,’ it will be your duty to answer the third issue `Yes.’
“If you answer this issue `No,’ then you need not consider the question of damages, because the plaintiff would not be entitled to recover damages; but if you answer the first three issues `Yes,’ then you will consider the fourth issue; for although the deceased may have contributed to his own death by his own negligence, still if the defendant could by reasonable care have stopped its train and not run over and killed him, the plaintiff would still be entitled to recover.”
The defendant excepted to the charge delivered by the court, and assigned the following errors:
1. The charge assumes that the defendant failed to keep proper lookout on its track to avoid the accident, and did not properly leave the question to the jury.
2. In the instructions on the third issue, that the same law is applicable to it as the first, and the same facts that would (734) constitute negligence on the first issue would constitute negligence on the third issue, so that if the facts proven satisfy you that the defendant was guilty of negligence, and you answer the first issue “Yes,” it will be your duty to answer the third issue “Yes.”
There was judgment on the verdict for plaintiff, and defendant appealed. 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 issue. We cannot know upon what phase of (735) the testimony the jury acted in determining the question of negligence upon the first issue, and we have just as much right to assume
This inadvertence on the part of his Honor (and such alone do we consider it) affords the defendant a clear ground of new trial, and this would be equally true if, as suggested, the third issue had been omitted and the same instruction had been given on the first.
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 sober person. This is so well established that it would seem (736) unnecessary to cite authority in its support, but as it appears to be questioned we will reproduce a few extracts from some of the text-books, which are substantially repeated by every writer upon the subject. Mr. Wood, in his work on Railways (Vol. II, sec. 1457), after stating that one cannot voluntarily incapacitate himself from ability to exercise ordinary care, and then set up such incapacity as an excuse for his negligence, remarks: “The rule, therefore, is that the same care is required of a person when he is intoxicated as when he is sober, though if the defendant is aware of his state before the injury, it is bound to exercise greater care to avoid inflicting any injury upon him.” In Patterson‘s Railway Accident Law, 74, it is said: “The fact that the person injured was intoxicated at the time of the injury will not relieve him from the legal consequences of his contributory negligence.” In Bishop‘s Noncontract Law, 513, it is said: “Contributory negligence is the product of a general ill condition of the mind and not of a specific intent. Therefore, on principle, drunkenness does not excuse it; and so, also, are the authorities.” In 1 Thompson on Neg. (430) the author
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 Dean v. R. R., 107 N.C. 686, as one of the illustrations
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 other than crossings, and also to (740) discuss the doctrine of contributory negligence in its relation to the principle commonly called the rule in Davies v. Mann. The language used in the opinion is as follows: “If the engineer discover, or by reasonable watchfulness may discover, a person lying upon the track asleep or drunk, or see a human being who is known by him to be insane or otherwise insensible to danger or unable to avoid it, upon the track in his front, it is his duty to resolve all doubts in favor of the preservation of life, and immediately use every available means short of imperiling the lives of passengers on his train to stop it.” From this language it might be inferred that the duty of the engineer begins only upon the discovery of the person in danger; for until he does discover him the duty of resolving all doubts in favor of his preservation from danger cannot very reasonably arise. Taken, however, in connection with other parts of the opinion and the declaration of the Court in subsequent cases, it cannot be doubted that it was intended to declare the duty of keeping a proper lookout for all persons who may be on the track. The declaration, however, of a duty and the effect of intoxication in contributory negligence are very different things, and the latter question was, for the reasons above mentioned, not presented to the Court. It is true that from the opinion it might be inferred that intoxication, if it had been found as a fact, would have excused the negligence of the deceased, but, as we have said, this particular point was not decided, nor do the authorities cited in the opinion support this view. Let us examine these cases:
In R. R. v. Smith, 52 Tex. 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 to be noted that there (741) was evidence tending to show that he was intoxicated.
In R. R. 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
In R. R. v. St. John, 5 Sneed, 504, the accident complained of was to a child eight years of age; and in Meeks v. R. R., 56 Cal. 513, the accident was to a child six or seven years of age. In neither of these 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. R. R., 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 grass or a hedge of bushes, may the owner of a field, knowing the fact, continue to mow (742)on or fell trees, as if it were not so? Or, if the intoxicated man has entered a private lane or byway and will be run over if the owner does not stop his team which is passing through it, must he not stop them?” We have quoted the entire paragraph, so that it can be readily seen that this dictum (and it is nothing more) really means what we all concede — that if such an intoxicated person is discovered it is a duty, dictated by humanity as well as the law, to avoid inflicting an injury upon him. If this is not so, what meaning is to be attached to the words, “carelessly continue my progress,” ”knowing the fact,” and “does not stop them“?
When Mr. Wood (Vol. II, 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 only case he refers to of persons lying on the track is Meeks v. R. R., 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
It is manifest from this examination that these cases do not sustain the proposition that an intoxicated person is absolved (743) from the duty of exercising ordinary care, and it is but proper to say that they were probably cited for the purpose of sustaining the general principles laid down in the extract which we have quoted. Having shown, we think, conclusively, not merely by the weight, but by the entire course of judicial opinion, that the self-imposed disability of intoxication affords no more excuse in the law of negligence than it does in the criminal law, we cannot understand has we could be justified in the abrogation of this principle which has stood for centuries simply by reason of what may be implied from the language of an opinion in a case that did not distinctly raise the question. This, it seems to us, would not be following the doctrine of stare decisis, and the argument that a court can arbitrarily reject a fundamental principle of law by calling it a fiction is, we think, wholly inadmissible. If we can do this, there is no reason why the same principle may not be rejected as a fiction in the criminal law; and, indeed, we do not see why we could not dispose of any other well-grounded rule of law in the like summary manner. The supposed analogy with the principle of equity which relieves a wholly intoxicated person against the consequences of his contracts cannot be supported. Equity shields him in such cases when he has been imposed upon by reason of such incapacity, but neither equity nor law ever converts intoxication into a sword by means of which a drunken man can make a profit out of his self-imposed disability, when a sober man under the same circumstances would be entitled to no relief. It would, as Mr. Beach says, be a strange law that would enable a drunken man to recover when under the same circumstances a sober man would be denied all redress; and there certainly can be no more inhumanity in denying a recovery to one who, by an act done in (744) his intoxicated condition, might probably contribute to the wrecking of a train and the destruction of the lives of passengers, than to hang a man for a murder committed while wholly unconscious of his act by reason of the influence of strong drink. The law does not treat such unfortunate persons who may be on the track as outlaws. On the contrary, this Court and several others have declared it to be the duty of
If the Legislature sees fit to change the law in this respect, it (745) has the power to do so, but we do not think that so radical a change in the law of negligence should be wrought by what we cannot help thinking would be “judicial legislation” of the most pronounced character.
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. McAdoo v. R. R., 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
We feel very sure that his Honor‘s failure to apply the principle which we have been discussing entitles the defendant to a new 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‘s case, supra, and also our views as to how they should be applied. Leaving, then, the facts of this particular case behind us, we will state that one of the principles referred to is that which 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 owner of other property which 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 crossing. When, under the particular circumstances of a case, such property or persons may by the exercise of ordinary (747) care be discovered in time to avoid a collision, the failure to exercise such ordinary care is negligence, and the plaintiff will be entitled to recover unless he has been guilty of contributory negligence. Of course, where a person is discovered and is apparently not unconscious of danger, it is to be presumed that he will observe ordinary caution,
4. We 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 kind of authority which the courts, without reference to true principle, (750) are constrained to follow. These observations are particularly applicable to the doctrine of contributory negligence, and especially in its relation to what is generally called the rule of Davies v. Mann. All along the highway of judicial decision we find it so strewn with the wrecks of overruled cases, exploded dicta and condemned or qualified expressions that we are inclined to sympathize with the despairing remarks of Judge Thompson that “The whole subject of contributory negligence remains in a state of great confusion and
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 Noncontract Law, 459; 2 Wood, 1447; Wharton Neg., 323; 4 A. E.,
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. R. R., 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 Judge Thompson, which is supported by the weight of English and American authorities. (753) 2 Thompson Neg., 1157. Counsel insists that until the actual discovery of the person apparently in danger, the negligence of such person cannot be said in a legal sense to precede that of the defendant, and, therefore, unless the injury could have been avoided by the exercise of ordinary care after such discovery, the plaintiff has no cause of action. It must be manifest that, if this is the correct view, the rule in question would have but little room for application, for when an engineer actually sees a person apparently insensible to danger and fails to use ordinary care to avoid his injury, he is guilty of such a reckless and wanton disregard of human life that his conduct is so far
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, 85 N.C. 310. We think that a plain and simple statement of the rule is to be found in the work of Shearman Redfield on Negligence, Vol. I, sec. 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
This view is but another way of stating the principle that “Where the negligence of the person inflicting the injury is subsequent to and independent of the carelessness of the person injured, and (755) ordinary care on the part of the person inflicting the injury would have discovered the carelessness of the person injured in time to have avoided its effects and prevented injuring him, there is no contributory negligence, because the fault of the injured party becomes remote in the chain of causation.” The foregoing extract is taken from the able article on Contributory Negligence, 4 A. E., 27, and is sustained by Tuff v. Warman, 5 C. B., 573, and numerous authorities cited in the notes, and also by our own decisions.
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 consideration 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 per se negligence, Troy‘s case, supra), (756) and while there, and before the decisive negligence of the engineer, he by his own negligence becomes so entangled in the rails that he cannot extricate himself in time to avoid the collision, and his helpless condition could have been discovered had the engineer exercised ordinary care, then the negligence of A would be previous to that of the engineer, and the engineer‘s negligence would be the proximate cause, he, and not A, having the last clear opportunity of avoiding the injury. The same result would follow in the case of a wagon negligently stalled, when no effort of the owner could remove it, and there are other cases to which the principle is applicable.
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 danger 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 contributory negligence in all of its aspects, and our chief object has been to meet the (757) arguments of the able counsel which were directed against the existence of the duty under consideration, and also the application of the principle of Davies v. Mann, until the actual discovery of the danger. It has been suggested that when the engineer fails to exercise ordinary care in discovering persons on the line of the track, he is not guilty of ordinary negligence, which all the text writers and our own Court time and again have declared is the legal effect of a want of ordinary care (McAdoo‘s case and authorities cited), but that his conduct is so wilful and wanton that there can be no contributory negligence whatever. Under such a rule, not only will railroads be made insurers against the consequences of the negligence of all persons trespassing upon their property, but even the engineer may be convicted of murder by reason of a mere inadvertence. It is hardly necessary to say that all of the decisions of our Court are against such a position, and this is the general current of authority. We think that, in declaring the duty we have been considering, this Court has gone as far as a reasonable exercise of its authority permits. If such a revolutionary change is to be made in the law of negligence, or rather if the law of negligence is to be altogether abolished in such cases, it should be done by the Legislature and not by the Court. Jus dicere non dare.
For the reasons given in the first two divisions of this opinion, we think there should be a
New trial.
Addendum
I concur in the conclusion reached by the Chief Justice, that there should be a new 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 himsel