Way v. High Point, Thomasville, & Denton Railroad

BbogdeN, J. A pedestrian in the daytime is walking on a live track of a railroad approaching a crossing. An engine traveling in the same direction as the pedestrian runs upon him without signal, and death results from the impact. At the time the train was running contrary to its usual custom upon the south track. There was no evidence that the pedestrian was not in full possession of all of his faculties. The question of law presented is whether plaintiff’s intestate was entitled to recover. The law answers the question in the negative. The applicable principle was stated in High v. R. R., 112 N. C., 385, 17 S. E., 79, as follows: “Where an engineer sees, on the track in front of the engine which he is moving, a person walking or standing, whom he does not know at all, or who is known by him to be in full possession of his senses and faculties, the former is justified in assuming, up to the last moment, that the latter will step off the track in time to avoid injury, and if such person is injured the law imputes it to his own negligence, and holds the railroad company blameless. . . . “If the plaintiff had looked and listened for approaching trains, as a person using a track for a footway should in the exercise of ordinary care always do, she would have seen that the train, contrary to the usual custom, was moving on the siding,” etc. The same principle was tersely expressed in Neal v. R. R., 126 N. C., 634, 36 S. E., 117, as follows: “These cases hold that it is not negligence in a railroad company where *801 its train runs over a man walking on tbe railroad track, apparently in possession of bis faculties, and in tbe absence of any reason to suppose that be was not. Tbis is put upon tbe ground that tbe engineer may reasonably suppose that tbe man will step off in time to prevent injury.” See, also, Davis v. R. R., 187 N. C., 147, 120 S. E., 827; Thompson v. R. R., 199 N. C., 409, 154 S. E., 630; Dix v. R. R., 199 N. C., 651, 155 S. E., 448. Affirmed.