Sherrill v. Railroad

Hoke, J., after stating the case: We have held in Cooper v. Railroad, at this term, that one who enters on a public railroad crossing is required to look and listen, and when he fails in this duty and is injured in consequence, the view being unobstructed, under all ordinary conditions such person is guilty of contributory negligence. It is further held that negligence having been first established, facts and attendant circumstances may so qualify this obligation to look and listen, as to require the question of contributory negligence to be submitted to the jury, and in some instances the obligation to look and listen may be altogether removed. The principle, with its limitations, applies, we think, with peculiar force to those persons whose duties, by contract relation with the railroad company, call them to work on or upon the railroad tracks, or frequently to cross the same, and is sustained by abundant authority. Cooper's case, supra; Erickson v. Railroad, 41 Minn., 500; Shearman & Redf. on Neg., sec. 416; Laverentz v. Railroad, 56 Iowa, 689; Nixon v. Railroad, 84 Iowa, 331; Rodrian v. Railroad, 125 N. Y., 526; Jennings v. Railroad, 112 Mo., 268. In Shearman & Bedfield, supra, it is said: “A traveler must look in every direction * * * but circumstances may excuse him from looking more than once. There is no arbitrary rule requiring him to look constantly. *256 In Rodrian's case, supra, Agnew, J., said (quoted also in Cooper's case, supra): “But where one has looked for an approaching train it would not necessarily follow as a rule of law that he was remediless because he did not look at the precise place and time, when and where looking would have been of the most advantage.” The facts in Jenning’s case are very similar to the one before us so far as the obligation to look and listen is concerned. As pertinent to the question they are stated thus: “Plaintiff, before passing these cars, looked west along the street he was traveling, and saw it was open. He could not see south on the second sidetrack because of cars on the first. He looked in that direction, however, saw no one on top of any car, and heard no engine bell ringing, though he saw the smoke from an engine. He crossed over the first track, upon which the cars were standing, and while looking north at the approaching train on the main track, stepped upon the sidetrack without again looking south, and was immediately struck, knocked down and run over by some freight cars, five in number, which had been kicked by an engine from a point 300 or 400 feet south of Lesperance street.” On these facts, there was verdict and judgment for the plaintiff, and in affirming the judgment the court held that “the rule that a person who goes on a railroad track or purposes crossing it, must use his eyes and ears to avoid injury, and if. he neglects to do so he cannot recover, notwithstanding the negligence of the company, is not of universal application, but has exceptions under exceptional circumstances, and the facts of this case make an exception to the rule.” Applying these decisions to the facts testified to by the plaintiff, we hold there was error in directing a nonsuit. The plaintiff’s duties by contract with the company (whether through himself or under his employer, who was a contractor with the company, makes no difference) caused him to work almost on the track, and frequently required him then and *257 there to be upon, and across it. While so engaged, he was run over by an engine of the defendant company, which had come upon him without any warning, and which warning was required both by the custom and rules of the company. More than that, he had just looked and listened both ways, not at the precise'time when he started to cross the track, but only several seconds before, and the way then appeared clear. He says half a minute, but, as a matter of fact, you could walk the distance, he says he went, and at the rate he says he was me /ing, in five or sis seconds. To hold him to a constant looking would disqualify him from doing his work, and as a matter of law it is not required of him. If the negligence of the defendant is properly established, we are of opinion that on the evidence, set forth in this case, the question of contributory negligence must be left to the jury to determine under proper instructions, and on the facts as they shall find them. The case, we think, comes within the principles so clearly stated in Smith v. Railroad, 132 N. C., 825. There is erfor and a new trial is awarded. New Trial.