24 S.E. 740 | N.C. | 1896
Lead Opinion
The court instructed the jury that; “ if the plaintiff stepped from the track on to the embankment in time to avoid a collision with the train and the-bank gave way on account of being loose dirt which had slid into the road'from time to time, and been permitted to remain on the bed, then the giving away of the bank would be the proximate cause of the injury, and the defendant would be liable in damages for the injury.”' This portion of the charge being excepted to, the question is presented whether, if we concede that the defendant was negligent in allowing the loose earth which had fallen down from the sides of the cut and extended to the margin of the track at this particular place to remain there, and also that the plaintiff had been careless in coming-back into the cut before the west-bound train passed, the mere fact that the plaintiff stepped upon the loose earth in time to avoid collision, if it had not given way, would
The correctness of this instruction depends upon the ■definition of what is called the last clear chance, and we are therefore constrained to discuss that doctrine again. The principle as first formulated in Davies v. Mann, 10 M. & W., (Exc.) 545, and first laid down in this State in Gunter v. Wicker, 85 N. C., 310, was stated in the latter case as follows: “Notwithstanding the previous negligence of the plaintiff, if at the time the injury was done it might have been avoided by the exercise of reasonable care on the part of the defendant, an action will lie for damages.” Ever since that time this Court has applied the principle only, in cases where, after the negligent act of plaintiff was a fact accomplished, the defendant had an opportunity or chance to exercise care which, if improved, would have averted the accident. An illustration of the doctrine would be clearly shown here, if the jury had believed that the engineer, after seeing the plaintiff’s perilous condition on the loose earth, could, by the use of ■ the appliances at his command, have stopped the train. But the leaving of the loose earth, which constituted the defendant’s first negligent act, was also a fact accomplished before the plaintiff started back through the-cut. The defendant had no opportunity to prevent loose earth from following a natural law in giving way when a man threw his weight suddenly upon it. By no conceivable act or omission on his part could the earth have been held stationary after the plaintiff got upon it, and he was negligent in exposing himself to danger, unless the defendant omitted to do some act which, “ notwithstanding the -previous negligence of the flaintiff, ” would have prevented his being injured. But bow the defendant could have caused the earth to remain stationary after the antecedent act of the plaintiff in
. In Ramies v. Mann, the defendant was held liable because, after the plaintiff had tied his ass and left him exposed in the highway, the defendant’s coach driver
The rule has been laid down at this Term in Russell v.
There being one phase of the evidence, at least, in which the plaintiff would be deemed negligent, the question of proximate cause or last clear chance depended on the findings upon and inferences drawn from the testimony. If, notwithstanding the negligence of the plaintiff, the jury find that the engineer saw, or might, by proper vigilance in keeping a lookout, have seen the plaintiff and would have had reason to believe, from his previous knowledge of the condition of the cut and of the surroundings, that he would be subjected to peril if the train should continue to move forward, it was negligence to fail to use all available appliances to stop it before reaching the point where the plaintiff had taken refuge upon the loose earth. It was the province of the jury ultimately to decide (Russell v. Railroad, supra,) whether the engineer exercised reasonable care, or such as the ideal prudent man would have exercised under such circumstances. There was testimony tending to show that the engineer might have stopped the train after the plaintiff’s condition couldfiiave been seen and understood by him. Was the engineer in the habit of passing through the cut? Did be know that the earth, which had slided off the embankment, was insecure as a footing for one seeking safety from a passing train ? If, in the exercise of such care as would have characterized a prudent man in the management of his own affairs, he would have had reasonable ground to believe that to persist in the effort to pass the plaintiff would be to subject him to peril, then the defendant company was answerable for his negligent failure to avail himself of the last clear
For the error in charging that the leaving of the loose earth in the cut was deemed, in law, the proximate cause of the injury, the defendant is entitled to a new trial.
New Trial.
Dissenting Opinion
(dissenting) : The last liability, or “ last clear chance,” as it is called, was with the defendant. Take the analogous case of a man walking on the railroad track at night, and who is run over by reason of the engine having no head-light. Troy v. Railroad, 99 N. C., 298. There, the walking on the railroad track at night is contributory negligence, and the negligence of the defendant in not carrying a head-light began before the act of the plaintiff, but it was a continuing neglect, and continued after the contributory negligence of the plaintiff, and was the proximate cause of the injury, for if there had been a head-light the plaintiff could, by the exercise of due diligence, have been seen in time to have prevented the injury, or the plaintiff would have seen the engine in time to have gotten off the track. Here the contributory negligence — if it was such — in going back through the cut when the train had failed to appear, was not the proximate cause of the injury. The plaintiff stepped off the track in full time to avoid being hurt, and his being in the cut was not per se the cause of the injury, but it was the treacherous condition of the earth which the defendant had allowed to slide down and fill up the side ditches. When the plaintiff, like a prudent
The court properly instructed the jury : “ If the plaintiff was instructed to watch the cut, and after waiting at the east end for a considerable time and finding the train did not come,, and knowing the condition of the weather and the condition of the cut and its liability to land slides, he went through the cut to the west end and then stopped and listened again, and not hearing the engine, he again entered the cut, and from time to time stopped and listened for the train and proceeded towards the east end, and about the middle of the cut the train came upon him and he attempted to get out of the way as alleged, and owing to the steepness of the bank of loose dirt and its soft condition, due to the excessive rains, he was thrown under the train and injured as alleged, then he was not guilty of contributory negligence.”
The other exceptions are without merit.
Lead Opinion
CLARK, J., dissented. The court instructed the jury that "if the plaintiff stepped from the track on to the embankment in time to avoid a collision with the train, and the bank gave way on account of being loose dirt which had slid into the road from time to time and been permitted to remain on the bed, then the giving way of the bank would be the proximate cause of the injury, and the defendant would be liable in damages for the injury." This portion of the charge being excepted to, the question is presented whether, if we concede that the defendant was negligent in allowing the loose earth which had fallen down from the sides of the cut and extended to the margin of the track at this particular place to remain there, and also that the plaintiff had been careless in coming back into the cut before the westbound train passed, the mere fact that the plaintiff stepped upon the loose earth in time to avoid collision, if it had not given way, would render the defendant liable, whether the engineer saw (1086) or could or could not by reasonable care have seen him in time to stop the train, and notwithstanding the latter's previous want of care. The defendant did not have the last clear chance, under any definition of the rule given by this Court, unless he could by *686 keeping a proper lookout have seen the plaintiff's condition in time, with the appliances at his command, to have stopped the train and prevented the injury. The leaving of the earth in the cut was a fact accomplished, and if the plaintiff went into the cut contrary to the command of his superior (the section boss) he was guilty of contributory and concurrent negligence. This instruction was not conditioned in any way upon the question whether the jury found that the plaintiff was negligent or whether the want of care on the part of the defendant intervened as an operative cause after his carelessness. So that, though the jury may have reached the conclusion that the plaintiff went back into the cut contrary to orders, and also that the engineer could not by the exercise of ordinary care have discovered his perilous position after he took refuge on the pile of loose earth, they were still required, under this instruction, to find for the plaintiff upon the question of proximate cause. Was the plaintiff guilty of contributory negligence if he disobeyed express orders in returning into the cut before the westbound train had passed through? The westbound train was already an hour late, and the order of his superior, if the jury believed the testimony of the section boss, required the plaintiff to remain east of the cut till the train passed. Any instruction as to what was the proximate cause must have been given in full view of the possibility that the jury might believe the testimony of the section master. If he was believed, the order contemplated that the (1087) plaintiff should at all events remain east of the cut till the train had passed.
The correctness of this instruction depends upon the definition of what is called the last clear chance, and we are therefore constrained to discuss that doctrine again. The principle, as first formulated in Daviesv. Mann, 10 M. and W. (Exc.), 545, and first laid down in this State, inGunter v. Wicker,
In Davies v. Mann, 10 M. and W., 545, the defendant was held liable because, after the plaintiff had tied his ass and left him exposed in the highway, the defendant's coach driver could by proper diligence have stopped the coach in time to avert a collision (1089) and consequent injury. In Pickett's case, supra; in Deans v.R. R.,
The rule has been laid down, in Russell v. R. R., post, (1090) 1098, that where the testimony is conflicting it is the duty of the court to instruct the jury, upon request of counsel, whether, in any given phase of the evidence, a party charged with carelessness has in fact been negligent. There was testimony to support the theory that the plaintiff had exposed himself, contrary to the command of his superior, who was charged with the duty of directing the time and manner of making inspections. The plaintiff laid the foundation for the claim that he was not culpable in exposing himself when he offered testimony tending to show that the section master was a vice principal (Logan v. R. R.,
There being one phase of the evidence, at least, in which the plaintiff would be deemed negligent, the question of proximate cause or last clear chance depended on the findings upon and inferences drawn from the testimony. If, notwithstanding the negligence of the plaintiff, the jury find that the engineer saw or might by proper vigilance in keeping a lookout have seen the plaintiff, and would have had reason to believe, from his previous knowledge of the condition of the cut and of the surroundings, that he would be subjected to peril if the train should continue to move forward, it was negligence to fail to use all available appliances to stop it before reaching the point where the plaintiff had taken refuge upon the loose earth. It was the province of the jury ultimately to decide (Russell v. R. R., supra) whether the engineer exercised reasonable care or such as the ideal prudent man would have exercised under such circumstances. There was testimony tending to show that the engineer might have stopped the train after the plaintiff's condition could have been seen and understood by him. Was the engineer in the habit of passing through the cut? Did he know that the earth which had slid off the embankment was insecure as a footing for one seeking safety from a passing train? If in the exercise of such care as would have characterized a prudent man in the management of his own affairs he would have had reasonable ground to believe that to persist in the effort to pass the plaintiff would be to subject him to peril, then the defendant company was answerable for his negligent failure to avail himself of the last clear chance to avoid the injury. These are questions (1092) which may arise on another trial, and the jury must be left to determine whether, under all the circumstances, the engineer might by the exercise of proper care have seen that he was in peril and stopped the train in time to avert the accident.
For the error in charging that the leaving of the loose earth in the *690 cut was deemed, in law, the proximate cause of the injury the defendant is entitled to a
New Trial.