White v. North Carolina Railroad

Clarkson, J. At the close of plaintiff’s evidence and at the conclusion of all the evidence, the defendant made motions for judgment as in case of nonsuit. C. S., 567. The court overruled these motions and in this we can see no error. On a motion for nonsuit, the evidence which makes for plaintiff’s claim, or tends to support her cause of action, is to be taken in its most favorable light for the plaintiff, and she is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom. The evidence of plaintiff is to the effect that the defendant’s freight train, going west, was traveling between 40 and 50 miles an hour, contrary to a town ordinance, ringing no bell and blowing no whistle, over a street crossing in the business section of the town, on which there was heavy traffic: There was a drizzling rain and it was a dark, foggy night. There were no safety appliances, stop lights or warning signals at Fourth Street. The crossing was rough and worn out, the rails projecting above the crossing two inches. The depot and boxcars obstructed the view of an approaching train going west of a traveler in a car on Fourth Street going north — he would have to be within eight or ten feet of the south rail of the main track before he could see the train which killed plaintiff’s intestate. We think there was sufficient evidence to be submitted to the jury on the question of negligence ’and contributory negligence. Moseley v. *87 R. R., 197 N. C., 628; Lincoln v. R. R., 207 N. C., 787; Preddy v. Britt, 212 N. C., 719. In tbe Moseley case, supra, at p. 638, quoting from 60 A. L. R., at p. 1196, it is said: “ ‘Where the evidence shows that a railroad crossing is for any reason peculiarly dangerous, it is a question for the jury whether the degree of care which a railroad company is required to exercise to avoid accidents at crossings imposes on the company the duty to provide safety devices at that crossing.’ ” Harper v. R. R., 211 N. C., 398 (405). Some of the questions of negligence that arise on the facts in this record are set forth in Sanders v. R. R., 201 N. C., 672 (678): “In Hendrix v. R. R., 198 N. C., at p. 144, is the following: ‘It is well settled in this jurisdiction that the violation of a town or city ordinance, or State statute, is negligence per se, but the violation must be the proximate cause of the injury. Ordinarily, this is a question for the jury if there is any evidence, but, if there is no evidence that the violation of the ordinance or statute is the proximate cause of the injury, this is for the court to determine.’ In Collett v. R. R., 198 N. C., at pp. 762, we find: ‘An engineer in control of a moving train is charged with the duty of giving some signal of its approach to a public crossing; if he fails to perform this duty the railway company is deemed to be negligent; and if as a proximate result of such negligence, injury is inflicted the company is liable in damages. Russell v. R. R., 118 N. C., 1098; Perry v. R. R., 180 N. C., 290; Moseley v. R. R., 197 N. C., 628.’ In Kimbrough v. Hines, 180 N. C., at p. 280, the Court quotes from cases as follows: ‘It is also established by the weight of authority that it is not always imperative on a traveler to come to a complete stop before entering on a railroad crossing; but “whether he must stop, in addition to looking and listening, depends upon the facts and circumstances of each particular case, and so is usually a question for the jury.” . . . Persons approaching a railroad crossing are not required, as a matter of law, to stop before attempting to cross, but his omission to do so is a fact for the consideration of the jury.’” N. C. Code, 1935 (Michie), .sees. 2621 (47) and 2621 (48). In Harris v. R. R., 199 N. C., 798 (799), we find: “The law in this State does not impose upon the driver of a motor vehicle, on his approach to a public crossing, the duty, under all circumstances, to stop his vehicle before driving on the crossing. Whether under all the circumstances, as the evidence tends to show, and as the jury may find from the evidence, the failure of the driver to stop, as well as to look and listen for an approaching train at a railroad crossing, was negligence on his part, is ordinarily a question involving matters of fact as well as *88 of law, and must be determined by tbe jury under proper instructions.”' Keller v. R. R. and Davis v. R. R., 205 N. C., 269 (278). From a careful reading of tbe charge on damages, we think it prejudicial. The court below charged the jury that “If the plaintiff is entitled to recover at all, she would be entitled to recover such sum as damages for loss of life as would be the present value of the net income of the deceased, and this is to be ascertained by deducting the cost of his living and ordinary expenditures from his gross income and then estimating the present value of the accumulation of such net income based upon the number of years that he would have lived, or his expectancy.”' The rule laid down in Carpenter v. Power Co., 191 N. C., 130 (132-3), is as follows: “Under the State law, the damages for the pecuniary worth of the deceased are to be ascertained by deducting the probable cost of his own living and usual or ordinary expenses from the probable gross income derived from his own exertions based upon his life expectancy. Purnell v. R. R., 190 N. C., 573. And in ascertaining these damages, the jury is at liberty to take into consideration the age, health and expectancy of life of the deceased, his earning capacity, his habits, his ability and skill, the business in which he was employed and the means he had for making money — the end of it all being to enable the jury fairly to determine the net income which the deceased might reasonably have been expected to earn, had his death not ensued. -In Benton v. R. R., 122 N. C., 1007, the following instruction was approved : ‘To enable the jury properly to estimate the reasonable expectation of pecuniary advantage from the continuance of the life of the deceased, they should consider his age, habits, industry, means, business qualifications, skill, and his reasonable expectation of life.’ It is only the present worth of the pecuniary injury resulting from the wrongful death of the deceased that may be awarded the plaintiff. It is not the equivalent of human life that is to be given, nor is punishment to be inflicted, or anger to be appeased, or sorrow to be assuaged, but only a fair and just compensation for the pecuniary injury resulting from the death of the deceased is to be awarded,” citing authorities. Damages of this kind, unlike damages for pain, suffering and mental anguish, are susceptible of somewhat accurate proof. N. C. Code, supra, sec. 1790, is as follows: “Mortuary tables as evidence. — Whenever it is necessary to establish the expectancy of continued life of any person from any period of such person’s life, whether he be living at the time or not, the table hereto appended shall be received in all courts and by all persons having power to determine litigation, as evidence, with other evidence as to the health, constitution and habit of such person, of such expectancy represented by the figures in the columns headed by the words ‘Completed age’ and ‘Expectation,’ respectively,” etc. *89 Tbis statute would indicate, as far as practicable, a formula to estimate tbe expectancy of tbe continued life of a person. Tbe. pecuniary worth must be ascertained by “deducting tbe probable cost of bis own living and usual or ordinary expenses from tbe probable gross income •derived from bis own exertions based upon bis life expectancy.” Upon tbe present record it seems probable, although tbis is by no means clear, that tbe difference between deceased’s gross income and bis gross income “from bis own exertions” was substantial and tbe vice in tbe charge was tbe failure of tbe court below to make tbis distinction clear, which we think was prejudicial to defendant. In view of tbe substantial damages involved in tbe instant case, tbis must be held as reversible error. For tbe reasons given, there must be a New trial.