Pharr v. Southern Railway Co.

Montgomery, J. : The plaintiff was lying in a position horizontal ■ to the railroad track, with a part of his body resting in a slight depression caused by a small ditch. His head, on or between the sills, could not be seen by engineer and firemen, according to their testimony, and was so near the rail as to be struck by the engine as it passed. From the evidence he was asleep or drunk, probably both. The engineer testified that, as he turned a curve in the road at a point six hundred yards distant from the place where the man was killed, he saw the object; that he looked at it carefully and thought it was a cross-tie. It attracted his attention. His duty then was more than ever to have kept a reasonable and proper lookout in his front in order to discover the nature of the object in time to stop the train and prevent injury if it should turn out to be a man or animal. And yet, as we understand the testimony of both the engineer and the fireman, after a careful reading of it, there was no further lookout until *756 the engine was within fifty or seventy-five yards from where the man was killed — too late to stop the train and prevent the injury. The counsel of the defendant, in his argument here, undertook to distinguish the facts in this case from those in the case of Pickett v. Railroad, 117 N. C., 616, and insisted that the law which was announced there upon the facts did not apply to the facts in this case. It is true that in Pickett’s case, stqora, the man was lying on the track, partly between the rails, asleep, while in this case no part of the body was between the rails. But we think that the rule which requires an engineer to keep a reasonable lookout in his front in observing the track applies as fully to the facts in this case as to those in Pickett’s case. A railroad company would certainly be liable to passengers if its engineer by a reasonable and proper lookout could haveseen an object, though not immediately on the track but on the side and so near as to obstruct an engine and cause injury to them, and did not stop his engine in time to prevent it. And it does seem that the same rule would apply, and the company be liable to the next of kin at suit of personal representative, where a man might have been seen .lying apparently helpless and so near to the track as to be killed by a passing engine. We think that this Court has so decided in effect, if not directly, in Deans v. Railroad, 107 N. C., 686. There the Court said, “It is the duty of an engineer while running an engine to keep a careful lookout along the track in order to avoid or avert danger in case he shall observe any obstruction in his front.” The position of the man as to the railroad track in that case was on the side of the track. A witness testified that “ he could not tell from his position whether he was lying across the rail, but thought his head was on the road-bed beyond the ends of the cross-ties.” *757 We are therefore of the opinion that his Honor was in error when he instructed the jnrv that if they believed the testimony of the witnesses, and found the facts to be as testified by them, the plaintiff could not recover, and that they should find the issues for the defendant. He should, upon the issues submitted, have instructed the jury that the plaintiff had contributed to his own injury. The testimony on that point was uucontradicted ; in fact, the contributory negligence was admitted. He should then have instructed the jury as to the third issue, which was in these words: “ Notwithstanding the negligence of said intestate, did the defendant’s agents exercise ordinary and reasonable care to prevent the injury ? ” that if from the evidence (it clearly appearing that two inferences might be drawn therefrom by fair-minded men) they should find that the engineer by keeping a reasonable and careful lookout could have discovered the object, which he said he thought was a cross-tie, was a man lying apparently helpless so near the rail of the track as to expose him to danger from the passing engine, or'when he first discovered, or by the exercise of ordinary care and diligence could have discovered, that it was a man, he could by the use of the appliances at his command, and without peril to those on his train, have stopped the train in time to have avoided the injury to the plaintiff’s intestate, the defendant was guilty of negligence, notwithstanding the plaintiff’s intestate was careless in lying down near the track, and the jury will answer the first issue ‘ Yes’ and the third issue ‘ Yes.’ As the plaintiff is entitled to a new trial we will not discuss any further the special instructions asked by the counsel of the plaintiff, as they may not arise on the new trial. New Trial.