(Filed 20 December, 1919.)
1. Railroads — Employer and Employee — Negligence — Personal Injury — Derailment — Evidence — Nonsuit — Trials.
The court will take judicial notice that a bull is an animal of a phlegmatic character not likely to be frightened or hastened in its movements by the ordinary signals of warning given by an approaching train; and where it is shown that the intestate of plaintiff, a fireman on the second engine of a double-header train, was thrown between the cab of the engine and the tender of his train by a derailment caused by running over a bull, the train moving about fifteen miles an hour, on a straight track about 300 or 400 yards from a curve in a cut the train had cleared; that a cow had just crossed the track, and the bull, quietly grazing 15 or 20 steps from the track, started to cross, running, when the train was 35 or 40 feet of the point of impact: Held, the mere fact that the whistle was not then blown, under the circumstances, in so short a time, is not sufficient evidence of negligence to be submitted to the jury, and a motion as of nonsuit was properly allowed.
2. Negligence — Res Ipsa Loquitur — Presumptions — Admitted Facts — Railroads — Derailments.
The doctrine of res ipsa loquitur from a derailment of a train, in a stock injury case, is inapplicable when it is not denied or controverted that the track and equipment, etc., were in good condition, and all the facts causing the accident are known.
APPEAL by plaintiff from Ray, J., at the June Term, 1919, of BUNCOMBE.
Wells Swain for appellant.
Martin, Rollins Wright for appellee.
CLARK, C. J., dissenting; HOKE, J., concurring in the dissenting opinion.
This is an action to recover damages for negligence resulting in the death of Lloyd Enloe, a fireman who was killed while at his post of duty and employed by the Southern Railway Company.
Plaintiff's intestate was killed about 12 o'clock m., on 9 May, 1917, at a point on the line of the Southern Railway Company about 300 yards west of Lake Junaluska Station in Haywood County. The deceased was twenty-one years of age, and the sole support of his mother and five small brothers and sisters. At the time of his death he was the fireman on the second engine in a double-header train going east from Waynesville, N.C. toward Asheville, N.C. The train was in charge of Captain L. E. Perry as conductor. The front engine was being run by Clint Burt, engineer, and O. H. Bradshaw, fireman. The second engine was in control of A. C. Enloe, engineer, and Lloyd Enloe, deceased, as fireman. The death was caused by a derailment of the engine, which occurred upon a straight track, about 300 or 400 yards east of where the train cleared a little cut, called the "White Cut," which was caused by the train running over a large bull, the property of Garrett Reeves. The bull and a cow were grazing on the north side of the track, and when first discovered by O. H. Bradshaw, fireman on the front engine, the cow was wandering in the direction of the track. The fireman saw the cow and the bull shortly after the train cleared the cut. The cow went toward the track and passed across the track ahead of the train. The fireman went over from the left to the right-hand side of the cab to see if the cow had passed over in safety, and when he went back to the left-hand side he saw the bull look up and go straight toward the track, and there met the train, causing the wreck. The collision of the train with the bull derailed the engine. The deceased was caught between the cab in which he was riding and the tender containing the coal and water, and was burned by steam escaping from the boiler.
The bull was 15 or 20 steps from the track grazing when he started across, running, and the train was then within 35 or 40 feet of the point of impact running 15 miles an hour.
The evidence of the plaintiff is that the roadbed was in good condition, and that from the time the bull started across there was no time to give a signal or to do anything else to avert the injury. There was evidence that no whistle was blown. At the conclusion of the evidence judgment of nonsuit was entered, and the plaintiff excepted and appealed.
The evidence for the plaintiff shows that the bull, which was the cause of the accident, was fifteen or twenty steps from the railroad track, grazing quietly, until the train was within 35 or 40 feet of the point of impact, and that he then started across the track, and was run over and killed, causing a derailment of the engine, which brought about the death of the plaintiff's intestate.
It is also in evidence that the train was running fifteen miles an hour, and that not more than one or two seconds elapsed after the bull started to the track, and that within this time the train could not have been stopped, nor could anything else have been done to avert plaintiff's injury and death.
If so, the liability of the defendant, if any, depends on what occurred before this time, and there is evidence that the bull could have been seen when the train was 300 or 400 yards distant, and that the whistle was not blown, and it is upon this last circumstance the plaintiff relies for a recovery.
A review of the cases in which damages have been recovered for killing animals because of failure to sound a whistle will demonstrate that the animals were either on the track, or indicating by their action they would probably go on, or so close that from the excitable nature of the animal they might be expected to do so, and it is not made the absolute duty of the railroad company to sound the whistle in all cases, when the animals are near the track.
In the Snowden case, 95 N.C. 97, the horse was three feet from the track, and it was held that precautions ought to have been taken to avoid the injury, taking into consideration that it was a nervous animal, and the Court quotes with approval the following from Wilson v. R. R., 90 N.C. 69: "It may be conceded that when cattle are quietly grazing, resting, or moving near the road, not on it, and manifesting no disposition to go on it, the speed of the train need not be checked; but the rule is different when the cow or mule is on the road, and runs on, then off, along, near to, and back upon it. In such case reasonable diligence and care require that the engineer shall slacken the speed, keep the engine steadily and firmly under his control, and, if need be, to stop it, until the danger shall be out of the way."
The dog case, 136 N.C. 554, and the turkey case, 163 N.C. 34, are also illustrations of the principle that the known character of animals may be considered in determining what precautions should be taken to avoid injury, but the latest and one directly applicable is the goose case, 166 N.C. 572.
In that case the action was to recover damages for killing geese, and in sustaining a motion for judgment of nonsuit, the Court said: "The mere fact that the whistle was not sounded nor the bell rung, if such was the fact, is not sufficient evidence, taken alone, to have gone to the jury in this case.
"The plaintiff relies upon the `turkey case,' Lloyd v. R. R., 163 N.C. 33. But the two cases are very dissimilar. . . . The turkey is a nervous fowl, and the jury might well have found that if the whistle had been blown the turkeys would have taken wing or have run, and therefore we held that it was error to enter a nonsuit.
"Geese, however, are phlegmatic and slow of movement, and the blowing of the whistle or ringing the bell would not be calculated to make them run or fly. On the contrary, the approach of the train would be more likely to cause them to huddle up in conference or to stretch out their necks to oppose the passage of the engine. In the absence of evidence showing circumstances of actual negligence, the mere fact that the whistle was not blown or the bell rung did not authorize the court to submit the case to the jury. . . . For all that appears, the geese waddled on the track just ahead of the engine. But if it were shown that they were on the track when the engine was 300 yards off, yet from the nature of the fowl is there any reason to assume that if the signal had been given they would have gotten off the track in time? They have too much dignity or are too combative to flee promptly from danger. Besides, as Mr. Cooper well observed in his argument, `Can the engineer determine what are the negotiations of a flock of geese in a field, or even on the track, when they got their heads together?'
"The difference between the characteristics of a turkey and of a goose is a matter of common knowledge. The turkey is long-legged, quick of movement, and promptly responsive to a signal of danger. The goose is short-legged, slow to fly or run, and resentful rather than appreciative of a warning of danger."
The goose is "phlegmatic," which Webster defines as "not easily excited to action," and so characteristic of the bull is the refusal to yield to warning, persuasion, or force that the word "bull-headed" is accepted in ordinary conversation and by lexicographers as the synonym of "headstrong," "obstinate," "stupidly stubborn."
The sounding of the whistle would in all probability have been regarded as the challenge for battle, and certainly there is nothing in the record permitting the inference that it would have deterred the bull from going on the track.
The doctrine of res ipsa loquitur usually arising from the derailment of a train does not apply, because the track was in good condition, and all the facts causing the accident are known. 29 Cyc., 592; Orr v. Rumbough, 172 N.C. 760.
The intestate of the plaintiff has been the unfortunate victim of a most regrettable accident, for which, however, the defendant is not responsible.