Borden v. Southern Railway Co.

CLARK, C. J., concurring. The testimony introduced for the plaintiff tends to prove these facts: On 11 May 1916, a train of the defendant had gone from the switch on the main line leading west from Goldsboro and was, leaving town, a few hundred feet up the track. Chestnut street (178) crosses to the railroad at right angles and there is a road parallel with the railroad running west from Chestnut Street. This road is about 20 or 25 feet from the railroad at the point where it leaves Chestnut Street and verges toward the railroad until it crosses it at a distance of about 300 or 400 feet further west. This road is very close to the railroad, is on level ground, running with the track, which is perfectly straight. There is no road leading from this one, and a team keeping in this road would have to cross the railroad at the junction point. The team of mules belonging to the plaintiff and driven by a negro came into this road from Chestnut Street going west. At the time the team came in from Chestnut Street, the train had gone about 600 or 700 feet and was still 300 or 400 feet from the crossing, and the driver lost control of them and though he did his best to pull them from the railroad, they continued running away and came on the crossing just as the train did and one of them was killed. There was no obstruction between the engine of the train and the team and the train continued to overtake them, going at a rate of speed twice as fast as the team. We are of opinion that the evidence is sufficient to support the inference that the engineer, by a watchful and careful lookout, could have seen the condition of the team and its driver and possibly in time to have stopped the engine and avoided the accident. The jury are not compelled to draw that inference, or to come to such conclusion unless they are satisfied by a preponderance of the evidence that such is the case. This Court has said in many cases that where live stock is injured by a train and the evidence is such as to warrant it, the question whether the engineer, by keeping a proper lookout, could have prevented the injury, is a question for the jury. Before arriving at such conclusion, the jury should consider the testimony and all the circumstances surrounding the accident. Deans v. R.R., 107 N.C. 692, and cases cited. New trial.