Sampson v. . Jackson Bros. Co.

Clarkson, J. The defendant introduced no evidence, and at the close of plaintiff’s evidence made motion as in case of nonsuit, C. S., 567. The court below sustained the motion, and in this we see no error. It is the settled rule of practice and accepted position in tbis jurisdiction that, on a motion to nonsuit, the evidence which makes for the plaintiff’s claim and which tends to support bis cause of action, whether offered by the plaintiff or elicited from the defendant’s witnesses, will be taken and considered in its most favorable light for the plaintiff, and be is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom. Tbe evidence on tbe part of plaintiff was to tbe effect tbat defendant operated a logging road. C. S., 3467, provides that contributory negligence is no bar but mitigates damage, and under C. S., 3470, this section is applicable to logging and tram roads. Stewart v. Lumber Co., 193 N. C., 138; Hawkins v. Lumber Co., 198 N. C., 475. C. S., 3465, is to the effect that railroads are held liable where the injuries are sustained through negligence of fellow-servants or defective appliances. Tbe track for a considerable distance, several hundred yards, was straight and level in both directions from where the plaintiff’s intestate was killed. Tbe evidence was to the effect that it was the plaintiff’s intestate’s duty, and be was given the implements and instructed “to watch for fire up and down behind trains and to keep track in repair.” Plaintiff contends that the death of his intestate, in the exercise of due care, could have been avoided by the *418 defendant, bad it stationed upon tbe front ear of its backing train a person, or persons, to give tbe proper warning and signal of tbe approach of said long line of cars then being backed over tbe defendant’s track. But tbe evidence on tbe part of tbe plaintiff’s witness is to tbe effect “I did not see deceased before the train ran over him. I beard the train blow all along, signals warning people tbe train was coming into tbe woods after timber, and irrespective of tbe whistle tbe roar of tbe train could be beard a good ways off, two or three miles.” Plaintiff also contends that in the day-time a logging train in the woods, when backing must have a person, or persons, stationed upon the front car backing to give warning to employees working or walking on the track. That in Sawyer v. R. R., 145 N. C., at p. 27, the following principle is laid down: “And it is well established that the employees of a railroad company engaged in operating the trains are required to keep a careful and continuous outlook along the track, and the company is responsible for injuries resulting as a proximate consequence of their negligence in the performance of this duty,” citing authorities. In the present case, the evidence as to warning was not only the blowing and signal warnings and irrespective of the whistle “the roar of the train could be beard a good ways off . . . two or three miles.” We can find in tbe record no evidence to sustain plaintiff’s allegations that plaintiff’s intestate was “down upon said track performing bis duties or in a helpless condition upon said track.” Nor was there any evidence that plaintiff’s intestate was so absorbed and engaged in bis work that be was “oblivious to bis surroundings.” Tbe evidence does not support tbe allegations in plaintiff’s complaint. There must be proof to sustain tbe allegations. The humanitarian principle is set forth in Jenkins v. R. R., 196 N. C., at p. 469, as follows: “If the jury found from the evidence that deceased by bis own negligence contributed to the injuries which resulted in bis death, then there was evidence from which the jury could have further found that notwithstanding such contributory negligence, the proximate cause of such injuries was the failure of defendants to exercise due care, after deceased could have been discovered, sitting on the end of the cross-tie, in an apparently helpless condition, to stop the train and thus avoid the injuries to deceased. The principle upon which the doctrine of the ‘last clear chance’ is found, is recognized and enforced in this jurisdiction, as just and necessary for the protection of human life. Redmon v. R. R., 195 N. C., 764.” Davis v. R. R., 187 N. C., 147; Buckner v. R. R., 194 N. C., 104; Caudle v. R. R., 202 N. C., 404. *419 The Jenkins case, supra, is not applicable to the facts in the present case, nor is Sawyer v. R. R., supra, cited by plaintiff. In the Sawyer case, the evidence was to the effect: “The train, with the skidder on the front car, was at tbis time being backed down the track toward plaintiff at the rate of about two miles an bour, and could bave been stopped witbin a distance of fifteen feet; that as plaintiff and Billie Boyd were so moving down the track to take protection in the skidder, they were struck by a bolt of lightning, Boyd being instantly killed and plaintiff knocked down and rendered unconscious, remaining so until he was run over by the train. The place where the plaintiff fell and remained upon the track was seventy-five yards ahead of the moving train, on a straight track and in view of the bands and employees on the train, if any bad been looking.” The Court said at pp. 29-30: “A negligent act of plaintiff does not become contributory unless the proximate cause of the injury; and, although the plaintiff, in going on the track, may bave been negligent, when be was struck down and rendered unconscious by a bolt of lightning bis conduct as to what transpired after that time was no longer a factor in the occurrence, and, as all the negligence imputed to defendant on the first issue arose after plaintiff was down and helpless, the responsibility of defendant attached because it negligently failed to avail itself of the last clear chance to avoid the injury; so its negligence became the sole proximate cause of the injury; and the act .of plaintiff in going on the track, even though negligent in the first instance, became only the remote and not the proximate or concurrent cause. This responsibility of a defendant by reason of a negligent failure to avail itself of the last clear chance to avoid an injury is sometimes submitted to a jury under a separate issue; and, while it is sometimes desirable, it is not always necessary so as to prevent it, and the trial judge, in bis discretion, as be did in tbis instance, may submit the proposition and bave same determined by bis charge on the issue as to contributory negligence.” Lassiter v. R. R., 133 N. C., 244, cited by plaintiff and Inge v. R. R., 192 N. C., 522, are distinguishable from the case at bar. The matter is fully discussed by Clark, C. J., in Moore v. R. R., 185 N. C., 189, at p. 190, we find: “In Lassiter v. R. R., 133 N. C., 244; Smith v. R. R., 132 N. C., 819, and Peoples v. R. R., 137 N. C., 96, the distinction is clearly recognized between the presumption which arises when a person in the apparent possession of all bis faculties is seen walking on the track and the duty owed to one of the railroad employees who is absorbed and engrossed in bis work. In the Lassiter case, supra, the conductor of a freight train bad bis back to an approaching shifting-engine, and while engaged in giving orders to bis men on bis own train, stepped in front of the box cars attached to the shifting engine and was *420 run over and killed. Tbe Court beld that it should have been left to the jury on the issue of the last clear chance, as defendant was negligent in having no watchman to notify the engineer of the shifting engine, for it is the duty of the defendant company to keep a lookout. On page 249 of that case, it is said in words very applicable to this case: 'The intestate was at a disadvantage, was not upon equal opportunity with the defendant to avoid the injury, for his manner and conduct showed that he was oblivious to his surroundings and was engrossed in the management of his train and his crew, . . . his action showed that he did not hear the bell ringing, . . . the condition of the intestate was as helpless as if he had been asleep or drunk on the track, and the defendant owed him at least as high a duty as if he had been asleep or drunk.’ ” A verdict or finding must rest upon facts proven, not on surmise, conjecture, guess or speculation. We do not think the evidence sufficient to be submitted to a jury, and the humanitarian doctrine of the last clear chance is not applicable in this case. The judgment of the court below is Affirmed.