Troy v. Cape Fear & Yadkin Valley Railroad
6 S.E. 77
N.C.
1888
Check Treatment
Davis, J.,

(аfter stating the case). The charge of the Court was given with care, and we think stated the law fully and fairly as applicable to every view presented by the evidence. We have given it, as sent up with the case on appeal, but only two exceptions — one to the first instruction asked for by the plaintiff, which was given, and the other to the 6th instruction asked for by the defendant, which was refused— were insisted upon in this Court, and as the other exceptions were not pressed, we disposе of them by saying that they were of no avail.

1. The defendant says that the plaintiff’s intestate was a “trеspasser,” and being wrongfully on the defendant’s road, the injury was the result of his own wrong. For this position many authorities are cited, and especially Bacon et al. v. Balt. and Pot. R. R. Co., 15 Am. and Eng. R. R. Cases, 409, and the note in which many cases are cited to the effect that persons walking on the track of a railroad are trespаssers, and generally considered to be guilty of such contributory negligence as to bar a reсovery of damages for injuries sustained while so trespassing. We think that upon ‍‌​​​​‌‌​​‌‌​​​‌​‌‌‌​​​​​‌​‌‌​​​​​​​​‌‌​​​​‌‌​‌‌‌‍a careful examination of the cases cited by counsel for the appellant, it will be found that in most of them the injury was the result of contributory negligence of the party injured proximately causing it, and not resulting directly from the negligence of the defendant, and where they have gone beyond this, they *306 are not in аccord with the rulings of this Court, nor in harmony with the current of authority.

In Byrne v. N. Y. Cen. and Hudson R. R. Co., 104 N. Y., 362, (58 Am. Reps., 512,) it was said, “ that when the public, for a series of years, had been in the habit of crossing the railroad, the acquiescence оf the defendant in the public use amounted to a license or permission to cross at the рoint, and imposed the duty upon it, as to all persons so crossing, to exercise reasonаble care in the movement of its trains, so as to protect them from injury,” and this position is supported by abundant authority.

But even if he were a trespasser, we do not assent to the idea ‍‌​​​​‌‌​​‌‌​​​‌​‌‌‌​​​​​‌​‌‌​​​​​​​​‌‌​​​​‌‌​‌‌‌‍that the company is thereby released from reasonable care.

In Vicksburg and Meridian R. R. Co. v. McGowan, 62 Miss., 682, Campbell, C. J., says: “ One may be technically a trespasser, and if he uses due care to avoid injury from the wrongful act of another, he may recover; and he may not be a trespasser, and yet guilty of such contributory negligence as to preclude him from recovering.”

He says: “ The criterion is whether he observes due сare, under the circumstances of his situation, whatever it may be, to avoid harm from the act complained of.”

To constitute such contributory negligence ‍‌​​​​‌‌​​‌‌​​​‌​‌‌‌​​​​​‌​‌‌​​​​​​​​‌‌​​​​‌‌​‌‌‌‍as will defeat a recovеry, it must be the proximate and not the remote •cause of the injury. In Bal. & Ohio R. R. Co. v. Trainer et al., 33 Maryland, 542, it is said: “By proximate cause/ is intended an act which directly produced, or conсurred directly in producing the injury. By ‘remote cause/ is intended that which may have happened, and yet no injury have occurred, notwithstanding that no injury could have .¡occurred, if it had not happened. No man would ever have been killed on a railway if he had never gone on or near the track. But if a man does imprudently and incautiously go on a railroad track, and is killed or injured by a train of *307 cars, the company is responsible unless it has used reasonaable care and caution to avert it, provided the circumstances were not such, when the party went on the track, as to threaten direct injury, and provided, that being on the track, he did nothing, positive or negative, to contribute to the immediate injury.”

In H. & T. C. R. R. Co. v. Symkins, 54 Tex., 615, it is said, “ that a reasonable lookout, varying according to the danger and surrounding circumstances, is a duty always devolving on those in charge of a railway trаin in motion, and rail way companies are bound ‍‌​​​​‌‌​​‌‌​​​‌​‌‌‌​​​​​‌​‌‌​​​​​​​​‌‌​​​​‌‌​‌‌‌‍to exercise due care to avoid injury tо others, and a failure to do so will render them liable for injuries, resulting even to a trespasser, who has not been guilty of contributory negligence.”

In Parker v. Railroad, 86 N. C., 221, relied on by defendant, the deceased could, by using ordinary care, have avoided the injury, and the defendant could not stop the engine in time to prevent it.

We conclude that there was no error in giving the instruction complained of.

2. The second exception relied on here, was to the refusal to give the 6th instruction asked for by ‍‌​​​​‌‌​​‌‌​​​‌​‌‌‌​​​​​‌​‌‌​​​​​​​​‌‌​​​​‌‌​‌‌‌‍thе defendant. This instruction “was not given except as far as embraced in other charges given.”

Thеre was evidence tending to show that the negligence of the defendant was the direct and proximate cause of the injury; and there was evidence tending to show that the deceasеd, being on the track, under the circumstances detailed in evidence, (which was not per se such contributоry negligence as relieved the defendant from liability for failure to use ordinary care), cоuld not avoid the injury.

These questions were left fairly to the jury, and we can see no error in the instructions of the Court excepted to, or in refusing those asked or denied.

There is no error.