Opinion
(Filed 13 November, 1907.)
Railroads — Crossings — Warnings — Negligence — Contributory Negligence.
When it appears that plaintiff's intestate was killed by the engine of the lessee of the defendant company while it was backing, on a dark night, over a crossing, without light, signals, or any other warning, in a thickly settled community, a clear case of negligence is made out against the defendant, and, without other evidence, the question of contributory negligence does not arise.
ACTION to recover damages for the negligent killing of plaintiff's intestate, tried before Justice, J., and a jury, at April Term, 1907, of GUILFORD.
R. C. Strudwick and Stedman Cooke for plaintiff.
King Kimball for defendant.
(The rule upon the issue of damages in Mendenhall v. R. R., 123 N.C. 278, approved.)
CLARK, C. J., concurring.
The following issues were submitted:
1. Was the death of the plaintiff's intestate caused by the negligence of the defendant's lessee, as alleged in the complaint? Answer: "Yes."
2. Was the plaintiff's intestate guilty of contributory negligence, as alleged in the answer? Answer: "No."
3. What damage, if any, is plaintiff entitled to recover of the defendant? Answer: "Eight thousand dollars."
From the judgment rendered defendant appealed.
At the conclusion of the argument of the learned counsel for the appellant, this Court intimated an opinion that it was unnecessary to hear from the appellee. The case appeared to us to present, upon appellant's own presentation of the facts, a clear case of liability. Our subsequent examination of the record confirms fully the correctness of our intimation, and that the presiding judge committed no error on the trial. The evidence showed that plaintiff's (33) intestate was run over and killed by an engine of the Southern Railway company, lessee of defendant, whilst backing over a crossing in the night-time, without any light or man with a light on the front in the direction in which the said engine was backing, and without giving any of the signals of its approach; that is rang no bell and blew no whistle; that the said Beck's Crossing is a public crossing at Greensboro suburbs and in a thickly settled community; that there was a freight train passing said crossing on a parallel track, going east, towards Greensboro; that the engine which killed plaintiff's intestate was backing west, towards Pomona; that they passed each other near the crossing, and that the engine ran up some 50 yards after having run over and killed the plaintiff's intestate; that the engine was running along at a very slow rate of speed, and, as one of the witnesses said, went along like something slipping along on something soft: that plaintiff's intestate had been in a store at the crossing, and was talking with a number of people, who were witnesses in this case, and stated that he was going to church, and went towards the crossing; that he was not seen after he had gotten out of the light of the store door until his dead body was found on the track about five minutes later; that no engine except the shifting engine had passed along that track between the time the plaintiff's intestate left the store door and the time when his dead body was found, about five minutes later, upon the track; that the engine stopped and the engineer stated that he had killed somebody, and came back with his lights to see who it was; that he was a sober, industrious boy, 16 years and 22 days old, and had been working for the railroad as a telegraph operator and was getting $57.50 a month.
Accompanying young Gerringer was a companion, named Craven, who was evidently killed at the same time, and whose body was found near Gerringer's, on the first track next to Beck's store. (34) No exception was taken to any of the evidence offered by plaintiff, and defendant introduced none.
In the view we take of this case, it would be a waste of time to discuss seriatim the twenty-five exceptions appearing in the record.
The case appears to have been tried by the learned judge who presided upon well settled principles laid down in numerous cases. Purnell v. R. R., 122 N.C. 840; Stanley v. R. R., 120 N.C. 514; Lloyd v. R. R., 118 N.C. 1010; Mayes v. R. R., 119 N.C. 758. The evidence that the shifting engine was backing up the track towards the crossing, upon a dark night, without any light or precautionary signal, and ran over and killed the plaintiff's intestate and his companion, Craven, is full and convincing. The facts of this case disclose a degree of carelessness upon the part of the engineer in charge of the shifting engine that is almost criminal, and for the consequences of which the company could not reasonably expect to escape liability. It would seem to those who are not initiated in the methods of railway management that it would be profitable to the company, as well as a great protection to human life, to place a watchman at Beck's Crossing, where so many people and so much traffic must necessarily cross its tracks. The recovery in this case alone would pay the salaries for a number of years to come.
The exceptions to his Honor's charge upon the issue of contributory negligence cannot be sustained. While contributory negligence, like any other fact may be proven by circumstantial evidence, there is no fact in this record from which contributory negligence can be justly and reasonably inferred. If the court committed any error in that portion of the charge, it is harmless, for the judge might well have instructed the jury that there was no evidence of contributory negligence.
The exceptions, so earnestly pressed upon the argument, to (35) that portion of the charge upon the issue of damages are untenable. His Honor charged fully upon this phase of the case. The charge is full, comprehensive, and complete upon the rule for assessing damages, and is sustained by Mendenhall v. R. R., 123 N.C. 278; Carter v. R. R., 139 N.C. 499; Poe v. R. R., 141 N.C. 525; Watson v. R. R., 133 N.C. 188. In the charge is copied the very lucid statement of the rule by Judge Oliver H. Allen, commended by this Court in the Mendenhall case.
No error.