Norwood v. Raleigh & Gaston Railroad

Avery, J. after stating the case, proceeded : Plaintiff’s intestate could not have received the wounds, which caused bis death, without going at least upon the end of a cross-tie *240 on defendant's track. When he placed himself in a position where he was liable- to be stricken by a passing engine, it was his duty to keep a sharp lookout, and if he carelessly, recklessly, or in a drunken stupor, remained on the track when the engine was approaching and till it came in contact with him, he was negligent. If he put himself in the way of the moving engine and was killed by it, his negligence was, at least, a contributory cause of his death. McAdoo v. Railroad, 105 N. C., 140. If the engineer was negligent in failing to blow at the crossing, or on approaching the bridge, intestate’s subsequent refusal ©r failure to get off the track was, nevertheless, the proximate cause of the injury sustained, unless it can be reasonably inferred from the testimony that, after intestate went upon the track, the engineer did see, or could by ordinary care have seen, not simply that he was on the track, but that he had placed himself in peril by going upon the bridge, or appeared to be lying, drunk or insensible, in the way of Ihe engine, and that after he could by proper watchfulness have had reasonable ground to believe that such was the condition of intestate, it was in the power of the engineer, by the use of the appliances at his command, and without peril to any passenger on his train, to have stopped the engine in time to have avoided the injury. Deans v. Railroad, 107 N. C., 686; Clark v. Railroad, 109 N. C., 430; 1 Shearman & Red., sec. 97. If it were conceded that the engineer saw the deceased walking along the track, or sitting upright on the end of a cross-tie, in time to have stopped the train without peril or difficulty, he was justified in believing, up to the last moment, in the absence of knowledge or information, that he was insane or deaf, that intestate would take reasonable precaution for his own safety by moving out of the way. McAdoo v. Railroad, supra; Daily v. Railroad, 106 N. C., 301. It is not material whether (in passing upon the questions involved in this case) the intestate went upon the road under a license *241 or as a trespasser. “The license to use does not carry with it the right to obstruct the road and impede the passage of trains.” McAdoo’s case, supra. If he was an admitted trespasser, the plaintiff had a right to recover, if by the use of ordinary care after he went upon the track the defendant’s servant might have averted the injury. Lay v. Railroad, 100 N. C., 404; Clark’s case, supra. Were we to concede, for the sake of the argument merely (what we do not propose to announce as the law), that the presumption of negligence on the part of the defendant company would arise upon proof that plaintiff’s intestate was killed by defendant’s engine on its track (2 Wood R. R. Law, 1096, note 1101), there would be no presumption, in the absence of proof, that such negligence was the proximate cause of the injury to intestate. No such presumption would be stronger than that created by express provision of the statute in reference to killing stock, and that is rebutted upon the facts being shown by witnesses present. Doggett v. Railroad, 81 N. C., 459. No witnesses as to the management of the train, or the position and conduct of intestate at the moment when the injury was inflicted, were offered except the engineer and fireman. Both of them negatived the fact of seeing intestate, or the possibility of seeing him by keeping a proper look-out, till it would have been too late to save him by an attempt to stop the engine. They are corroborated, rather than contradicted, by other testimony. The nature of the wounds was such, according to the evidence, as to lead to the conclusion that they must have been inflicted on the end of the cross-tie, where intestate could not have been seen. The fact that at a house 150 yards off the road, or up the road, the head-light shone, without further evidence that it shown so brightly as to make the figure of a man distinguishable and show his danger, is not sufficient to go to the jury to show that the injury might have been avoided. There was no testimony tending to show that *242 intestate could have been seen while on the bridge or on the track, and in the absence of such evidence the fact that there was a bridge or a bank, such as was described, in the vicinity, is entitled to no weight in passing upon the single question to be considered. The fact that an engine was running at the rate of twenty-five or fifty miles an hour in a place remote from town, may be important in determining within what distance the train could have been stopped after the engineer could, by proper watchfulness, have seen intestate on the track in an apparently helpless condition. But it was incumbent on plaintiff, if she would avoid the consequences of intestate's negligence by showing some act of defendant's servants to be the real cause, to show from her own testimony, or that of defendant, that when tire engineer could first have seen intestate, he was not only on the track but was in such a situation or condition that he could not probably escape if the train continued to move on without diminishing its speed, and neglected to use the means available and safe to stop it. Dean’s and Clark’s cases, supra. It was not sufficient to prove only that he was seen standing ox-walking on the track. McAdoo’s case, supra. After contributory negligence is shown, the plaintiff cannot relieve himself of the burden of proving some subsequent act or omission of the defendant to have been the proximate cause, by offering testimony that merely raises a conjecture. He must show by facts or circumstances the nature of the act or omission, so that the inference may be fairly drawn that it was the immediate cause of the injury. Upon a review of the testimony, we concur with the Court below. Affirmed.