142 N.C. 333 | N.C. | 1906
Lead Opinion
The plaintiff was walking on Nutt Street in the city of Wilmington, at a locality where many of defendant’s tracks cross it leading to the wharves on the Cape Pear River, when he was run into by a car and knocked down and injured. There are no exceptions to the introduction of evi
The evidence is very conflicting as to how the injury was occasioned, as to speed of the moving car, as to whether it was an attempt to make a running switch, and as to the vigilance of the flagman and the other servants of the company. There was evidence introduced by plaintiff tending to prove that the crossing is a dangerous one; that there are some fifteen tracks crossing Nutt Street there; that trains and engines are constantly going in different directions at the same time on some of these tracks; that the street leads across these tracks to the Seaboard Air Line depot, and that there is much traffic and passing along it; that there are no gates to close when engines and trains are passing and only one flagman whose duty it is to warn passers of the approach of trains.
Plaintiff testifies that on 16 January, 1905, he had crossed thirteen tracks and was looking out for the cars; that he saw some up towards the bridge standing still; that he then looked towards the compress for cars on that track; that he continued to walk on, looking for cars, when he was hit by one unawares and badly injured; that the car was a flat-car with no one on it; that Mr. Hankins, the crossing-flagman, was in a little house 125 feet away, and if he saw him he did not come to his rescue. Plaintiff also offered some evidence tending to prove that the flat-car which struck him was a loose car which had been “kicked,” in railroad parlance, from the train for the purpose of making a “running switch” ; that the car was moving fast across Nutt- Street when it hit plaintiff, and that “there was no one on it or near it”; and one witness said that “there was no flagman at all.” There was strong contradiction of this evidence by defendant’s witnesses, but it is unnecessary to set out the tenor of their evidence.
The defendant offered, also, evidence tending to prove contributory negligence upon the part of the plaintiff.
The attempt to make a running switch across a much-frequented street is not only a ,negligent, but a most dangerous and unwarranted operation, and has been so held by a number of courts: Bradley v. Railroad, 126 N. C., 135; Brown v. Railroad, 32 N. Y., 591; Fulmer v. Railroad, 68 Miss., 355; Railroad v. Summers, 68 Miss., 566; French v. Railroad, 116 Mass., 537; Railroad v. Garvey, 58 Ill., 83; Railroad v. Baches, 55 Ill., 379.
It matters not whether the purpose was to “shunt” the car off on a switch or to give it force enough to roll along on the same track: it is negligence to permit a car to be “cut loose” and roll on uncontrolled by any one across a much-used crossing.
The jury having taken plaintiff’s version as the true one, there is sufficient evidence to uphold their finding on the first issue. Upon the issue of contributory negligence the evidence is conflicting. The evidence of the plaintiff, carefully examined, tends to prove that he was exercising all the care a man in his condition and circumstances could well exercise. There aré a great many tracks along there, and the most prudent of men may get confused; but the plaintiff states how he looked, and where he looked, and it is evident from his statement he was doing all he could to safeguard himself. The plaintiff’s evidence, if believed, abundantly justified the verdict of the jury. It is therefore our opinion that his Honor properly overruled the motion to nonsuit. It is not necessary that we should set out his Honor’s charge. It is very clear and comprehensive, stating with fullness and fairness the contentions of plaintiff and defendant and then instructing the jury clearly as to the law upon the different phases of the evidence. At the close of the evidence the Court
‘‘If the jury find from the evidence that the crossing along Nutt Street, having fifteen or more tracks upon which engines and cars were constantly shifting, was used by a very large number of people in the conduct of their business, then it was the duty of the defendant to furnish to persons desiring to cross the railroad at Nutt Street, in the city of Wilmington, either on foot or with vehicles, a reasonably safe method of crossing, either by way of bridges, gates, an adequate number of flagmen or watchmen, or in some other way. That even if the jury should find from the evidence that the plaintiff was negligent in not using ordinary care in looking and listening for approaching trains, still the jury should answer the first issue Wes’ if they further find from the evidence that the defendant could have prevented the injury by the use of means at hand or that it could have had at hand by t-heyise of reasonable care and diligence; and the fact that the plaintiff was deaf does not make him an outlaw, neither does it lessen the responsibility of the defendant company to warn him of approaching danger.”
The first objection made to this instruction is that it ignores the necessity for determining the proximate cause of the injury. Taken alone, the criticism may be well founded. But the charge must not be taken in sections, but as a whole. The jury had just been told in unmistakable terms that they must find “that such negligence produced the injury complained of,” and again, “that such negligence was the proximate cause of the injury,” before they could answer the first issue “Yes.” We think his Honor fully explained the doctrine of proximate cause, so as to leave no misapprehension in the minds of the jury. The other objection is by no means trivial. It relates to the words, “that the plaintiff was deaf does not make him an outlaw.” We think the use of such
Another prayer of plaintiff given and excepted to is as follows:
“That if the jury find from the evidence that the defendant company was operating the train which injured the plaintiff in violation of an ordinance of the city of Wilmington, and that it did not have a man on the end of the car approaching the crossing, as required by said ordinance, then this alone is a sufficient circumstance from which the jury may infer negligence on the part of the defendant, and to justify them in answering the first issue ‘Yes.’ ”
It is insisted that this instruction contravenes the rule laid down in Smith’s case, 132 N. C., 824, and Duval’s case, 134 N. C., 332, where it is held that running trains through cities and towns at a greater speed than is allowed by the municipal ordinances is some evidence of negligence to be submitted to the jury. The ordinance of the city of Wilmington requiring that the railroad company shall have a man on the end of a car approaching this crossing is an affirmance of the general law of the State. It did not declare anything to be law which was not already in force. In giving this instruction the Court did not tell the jury that a violation of a city ordinance was per se negligence, but that the jury might
After charging the jury fully and correctly as to actual or compensatory damages, the Court, at request of plaintiff, gave the following special instruction:
“In considering the question of damages, and in the attempt to reach the amount which the jury will award, if they are satisfied by the evidence that the plaintiff is entitled to any damage, they may take into consideration the question whether the injury was due to such negligence which amounts to a little more than an accident, or such negligence that shows wanton disregard of the rights of the plaintiff; and if they should fin'd in this case that the conduct of the defendant has been such as to indicate a reckless disregard of its duty to the plaintiff, they may, if they feel disposed, increase the allowance of damages for that reason.”
This is an instruction that plaintiff is entitled to recover punitive damages in some phases of the evidence, and is erroneous. There is no allegation in the complaint, and no evidence that the injury was wilfully, wantonly and recklessly inflicted in utter disregard of plaintiff’s rights. There is nothing in the facts of this case to bring it within the
It is contended that the Court finally instructed the jury that punitive damages should not be allowed in this case, in that the record disclosed that “At the conclusion of the whole charge, counsel for plaintiff asked if the Court would not charge that the plaintiff could recover punitive damages, and the Court said it would charge the jury that they must not allow punitive damages.”
As we have held, his Honor instructed the jury in the previous part of his charge practically that punitive damages might be allowed. If he intended this as a correction of the former part of his charge, it was his duty to have called the attention of the jury to it as a correction. It would seem from this colloquy between Judge and counsel that both thought that the Court had not already instructed practically that the jury could award exemplary or punitive damages. The Court ought to have defined what is meant by punitive damages, for as it is a technical legal term, the jury might not have considered that his Honor had already charged in effect that they could award them. So we think that,
The jury were, therefore, left at sea, between contradictory instructions upon the issue of damages, which, under numerous decisions of this Court, entitles the defendant to a partial new trial.
In Edwards v. Railroad, 132 N. C., 101, it is said: “It is well settled that when there are conflicting instructions upon a material point, a new trial must be granted, as the jury are not supposed to be able to determine when the Judge states the law correctly and when incorrectly.”
Edwards v. Railroad, 129 N. C., 78; Williams v. Haid, 118 N. C., 481; Tillett v. Railroad, 115 N. C., 662.
Let one-half the costs of the appeal be taxed against the plaintiff and one-half against the defendant. It appears that unnecessary portions of the record were sent up at the plaintiff’s request. It is ordered that one-third of the costs of printing the record and one-third of the costs of making out the transcript in the Superior Court be taxed against the plaintiff individually.
It is ordered that there be a new trial on the third issue.
Partial New Trial.
Concurrence Opinion
concurring in part: I think it clear that an error was committed as to the issue of damages, in the respect stated in the opinion of the Court, and therefore concur in that opinion, and in the conclusion reached as to that issue. When the Court charged as to compensatory damages and then gave the instruction as to an increase in the allowance of damages by reason of a reckless or wanton disregard of plaintiff’s rights, it plainly referred to an enlarge
I am fully convinced there was error in the charge relating to the first issue, and consequently that the new trial should be general. It must be remembered that the expression in the charge, namely, “the fact that the plaintiff was deaf does not make him an outlaw,” was used, not by counsel in argument, but by the Court in direct response to plaintiff’s request for instructions. In State v. Horner, 139 N. C., 603, a similar remark was made by the Solicitor in his address to the jury when referring to the lawless acts of the defendant. This Court clearly intimated that, if the word “outlaw” had been used in its ordinary or legal sense, and the effect upon the jury of such an abusive epithet had not been counteracted by the Court, a new trial would have followed. But the Solicitor explained that he merely meant to describe the defendant as one who had put himself beyond the reach of the law’s process by avoiding arrest, and the word was not used in the sense that he had put himself beyond the pale of the law and forfeited its protection, as in the case of a fugitive from justice for whom proclamation has been made
My opinion, also, is that there was error in giving the third of the plaintiff’s prayers, it being the one fully set out in the opinion of the Court, and which refers to the violation of the city ordinance. The Court thereby instructed the jury that a violation of the ordinance alone was sufficient to justify them: 1. In inferring negligence, and 2, in answering the first issue “Yes.” In other words, that the violation of the ordinance was a circumstance which, standing by itself, justified them in giving an affirmative answer to the first issue. This goes beyond all of our precedents on this subject, and is, I think, plainly in conflict with them. It has always been held that the violation of an ordinance was merely evidence of negligence, and not negligence per se. The effect of this instruction is to make it negligence per se or negligence, without reference to any inquiry as to whether it proximately
As regards the crossing in question, it is a very dangerous one, if the evidence is credible, and the vigilance of the defendant should be proportioned to the danger. From the situation as now presented, it may well be argued that the defendant is bound to extraordinary care in the protection of the public while crossing its tracks at that place, but whether it has used the care in this particular instance which was required of it is a mixed question of law and fact, its lia
Concurrence Opinion
concurring: In State v. Horner, 139 N. C., 603, counsel for the State referred to the defendant as an “outlaw.” This was held not to be ground for a new trial. Here the Judge charged at request of plaintiff that the plaintiff was -not an outlaw. Certainly the defendant cannot be hurt thereby. He does -not contend that the plaintiff was outlawed.
If there was an incorrect intimation in the charge that the plaintiff could recover punitive damages, this was corrected after the charge was concluded, by the Judge refusing such prayer when asked by the plaintiff, and the express charge given that the plaintiff could not recover punitive damages. This is not the case of contradictory instructions in the same charge. No intelligent jury could fail to understand that this was the final instruction of the Court. The jury are presumed to be competent and intelligent men — as competent in the discharge of their office of triers of fact as'the Judge is taken to be in instructing them upon the law. If so, this last instruction of the Court, made after the charge had been concluded and in refusing a special instruction asked by the plaintiff, cotild not have failed to impress the jury that punitive damages could not be given by them. But is it entirely clear that the negligence of the defendant was not so gross as to amount to wilful and wanton neglect of duty'? Was there not, indeed, criminal negligence on its part ? The use of the public street by defendant in that mode had been so long persisted in, and was so glaringly dangerous, that it might well be that punitive damages would be required to prevent a continuance of the danger. The street had been laid out as such by .authority of law. Its primary use, therefore, was for citizens on foot or in carriages. The defendant had a right to use it only subject to the primary right of the
And the other tracks used for shifting purposes should have been moved farther out, to a shifting yard that would not be crossed by a public street which, by a decree of Court, has been laid out, as this street had been, for the use of the public. The defendant added to its great negligence in maintaining at that point 15 to 21 tracks, crossing a public street on 'the same grade, not only by having no gates, but by having only one flagman for so many tracks,‘who could have been of no protection to the plaintiff at the crossing of a distant track. Besides, the flagman who was stationed midway these 20 tracks signaled the plaintiff to go ahead, and he was struck by a flying switch, the cars running backward, without a lookout, and in violation of a town ordinance requiring a watchman on a board at rear end of the car 12 inches from the ground.
Such conduct by the defendant practically compels the citizens needing to use that street to take their lives in their own hands and to “run amuck.” It is a practical denial and reversal by the defendant of the decree of Court which dedicated that- street primarily to the use of the public. The street thus crossed by so many tracks leads to the depot of the S. A. L. Eailway, and was greatly used by the public, both for passengers and in hauling freight, and for the ordinary passing to and fro of the public.
When the defendant’s track was laid out, some seventy years ago, population and business were small, and the revenues to the company were light. It was not dangerous at that time to lay the defendant’s track on a- level with the public street, nor did the defendant then have 15 to 21
Throughout Europe railroads are very rarely permitted to cross a public road, even in remote country districts, and never in or near a town. In Connecticut, Massachusetts, and to some extent in New York, railroads have been compelled by statute to change their tracks so as to pass always above or beneath roads and streets used by the public, and to make the change, of course, entirely at their own expense. Such statutes have been held constitutional not only by the courts of those States, but by the Supreme Court of the Union.
Now that their attention has been called'to it, doubtless these great corporations, with their great and abundant revenues, derived from the public, and with their constantly increasing number of trains, will feel moved by considerations of humanity, as well as by their own interest, to abolish grade crossings at such places as this and at all others where their longer retention will be inconvenient or dangerous to the public.