Hill v. Atlantic Coast Line Railroad

Waleer, J. It was not denied tbat plaintiff was deaf and could not bear tbe noise- of tbe moving car. Tbe object of tbe law in requiring a signal is to give due warning of tbe approach of trains, and sucb signal should be given as will be reasonably sufficient to secure tbat end; or, to put it another way, sucb a signal as a man of ordinary prudence, in tbe exercise of reasonable care, would consider a proper one for tbat purpose, under tbe particular circumstances of each case. It is true, we said in Edwards v. R. R., 132 N. C., 99, tbat an instruction of tbe court tbat a signal must be given by bell and whistle was erroneous, as tbe special circumstances might not call for both, but it should be left to tbe judgment of tbe engineer, while exercising ordinary care, in each ease. Tbe ring of a bell might sometimes be more effective, as a warning to travelers and pedestrians on tbe crossing, than tbe blow of a whistle, and vice versa. We also there said: “It must be left to tbe jury to decide, under proper instructions from tbe court as to tbe law, what is a proper signal in any given case.” But in tbe Edwards case we were speaking with reference to its special and peculiar facts, and of signals by bell or whistle, or both, from a train running in- tbe daytime, when a headlight would be of little or no avail. Tbe same cannot reasonably be said of tbe signal required by night, except in a general way. When a fast-moving engine or motor car is nearing a crossing in tbe night, common prudence requires tbat there should be some signal by light, so tbat tbe person using tbe crossing, who is required to look, may see tbe approaching engine or car, and for this reason engines are furnished with headlights. Tbe user of tbe crossing is entitled to have it, so tbat be may exercise both senses, sight and bearing, which are given for bis protection, and which tbe law requires him to employ for bis own safety. And this Court has so held heretofore in Purnell v. R. R., 122 N. C., 832. There were two dissenting opinions in tbat case, one by Chief Justice Faircloth and tbe other by Justice Clark, now Chief Justice; but neither *596 was based upon any supposed error in tbe opinion of tbe Court upon tbe question of defendant’s negligence, but botb related to tbe second issue, as to contributory negligence. "We understand from tbe tenor of tbe dissenting opinions tbat botb judges concurred with the majority opinion on tbe question as to the duty to give a signal by light wben moving trains in tbe nighttime. Tbat case is in harmony with Lloyd v. R. R., 118 N. C., 1010; Stanley v. R. R., 120 N. C., 514; Mesic v. R. R., ibid., 489. In tbe Lloyd case tbe Court said: “It was negligence on tbe part of tbe defendant to run its engine after night, rear in front, without such a light, for two reasons: first, because by its aid the intestate might possibly have been seen in time to stop tbe train and avert tbe accident; and, secondly, because every person who used tbe track as a footway, under tbe implied license of tbe defendant, bad reasonable ground to expect tbat such care would be exercised and to feel secure in acting upon tbat supposition.” So in Stanley's case tbe Court said: “He (plaintiff’s intestate, while walking on tbe track) bad a right to suppose tbat tbe company would take care to provide against injuring pedestrians on the track by providing proper lights and signals, and to feel secure in acting upon tbat supposition. And if this light was not furnished (and there was testimony going to show tbat it was not), tbe company was not only negligent, but its negligence was a continuing one. Tbe jury found tbat tbe defendant was guilty of negligence for its failure to have a light on tbe car in front of tbe engine. On account, of tbat failure, tbe plaintiff’s intestate was put off bis guard and cut off from tbe opportunity to see bis danger.” In Purnell's case and Stanley’s case tbe injured parties were standing or walking on tbe tracks, while in this case tbe plaintiff, wben hurt, was on a public crossing, where be bad a perfect right to be, 'and while there tbe defendant should have taken care of him by the ordinary precautions. In Morrow v. R. R., 147 N. C., at p. 627, we said: “Its (tbe defendant’s) failure to have a headlight, so tbat be (tbe plaintiff) could see tbe train as it approached and clear tbe track, was negligence as to him.” And again, at p. 626: “Travelers *597 on a highway which crosses a railroad track have the right to use the highway, and are therefore entitled to notice of the approach of trains to the crossing.” The case of Gerringer v. R. R., 146 N. C., 32, seems to be directly in point. In that case Justice Brown said, at page 34: “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 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.” The Chief Justice said in Thompson v. R. R., 149 N. C., 155, 157: “The defendant was negligent in operating a train at night without a headlight,” citing Willis v. R. R., 122 N. C., 909. The case of Heavener v. R. R., 141 N. C., 245, applies the same rule to facts very similar in principle to those in this case, and approves Stanley’s case, supra. It is said in the recent case of Allen v. R. R., 149 N. C., 258, 260, Justice Brown writing the opinion: “It has been repeatedly held by this Court that it is negligence in a railroad company to back its trains along a place used by the public as a common walkway, in the nighttime, without a light on the end of the backing train so as to give warning of its approach.” ~We could multiply the cases supporting the doctrine, but why do so? What is the use? To sum up: The judge charged the jury fully and clearly as to plaintiff’s duty in passing over the crossing to look and to listen, and that if he failed to do so and was injured thereby, he could not recover, and they should answer the second issue “Yes” ;_and further, that it was the duty of the defendant to have a light at night on its car, so that it could be seen by those .using the crossing of its tracks and the public street, if by having a light plaintiff would have seen the car and avoided injury. There was no light on the car. As it had no bell or whistle with which to warn those on the crossing, or about to come upon it, of the danger, it stands to reason that the only other feasible signal, that is, a light, should have been *598 supplied. The plaintiff could not bear, but be could see, and no doubt would bave seen if there bad been a light. He was deprived of one sense, but the other, that of sight, was left to him unimpaired, and he had the right to the full use of it for his protection, and moreover was required by the law to resort to it in the absence of the other. But the use of it for his safety was practically destroyed by defendant’s plain omission of-duty. The jury evidently found, under the evidence and charge, that plaintiff looked and could not see the car as it approached, and that he could not hear it, because the court instructed the jury that if he saw the car or did not look for it, he was guilty of contributory negligence, and they answered that issue “No.” This being so, it becomes plain that he was entitled to the benefit of a light, that he might use his only other available sense, that of vision, to better advantage, and save himself from injury. A motor car has no special privilege in this respect which is denied to an engine or to a box car. Both can wound and kill. While we have referred to Stanley’s case and made an extract therefrom, we do not agree to all that is said therein; as we do not think it is what is called “continuing negligence!’ not to have a headlight on a moving engine at night, in the sense that the failure to have one would exclude the defense of contributory negligence and entitle the plaintiff to recover, even though he had failed to look and listen before going upon the track in the exercise of ordinary care. We have expressly approved the court’s charge in the present case, because he gave the defendant the full benefit of the defense of contributory negligence, and required, before the jury could render a verdict in favor of the plaintiff, that they should find that he had exercised due care as defined by the law. This disposes of the main exception and the only one upon which emphasis was laid. The other instructions excepted to were substantially correct, especially so when construed in the light of other parts of the charge, which must be viewed as a connected whole, and not distributively. We find no reversible error in the record. No error.