Jenkins v. Southern Railway Co.

CoNNOR, J. There was error in allowing defendants’ motions for judgment as of nonsuit, at the close of the evidence, and in the judgment dismissing the action. There was evidence tending to show that defendants and each of them failed to exercise due care to keep a vigilant and proper lookout from the moving train for persons who were or who might reasonably be expected to be on the track in front of the train, where plaintiff was sitting on the end of the cross-tie, and that such failure was the proximate cause of the injuries which resulted in the death of plaintiff’s intestate. The evidence was sufficient to sustain a finding by the jury that if a proper lookout had been kept by defendants, plaintiff’s intestate would have been discovered on the track in time for the train to have been stopped before it reached and struck him. There was evidence to the contrary. The conflicting evidence with respect to this matter should have been submitted to the jury, under, appropriate instructions, upon the issues involving (1) actionable negligence on the part of defendants; (2) contributory negligence on the part of the deceased; (3) the principle of the “last clear chance,” and (4) damages. If the jury had found from the evidence that neither of the employees of defendant railway company, who are defendants in this action, could have seen deceased, by the exercise of due care, in time to have had the train stopped before it struck him, because he had other duties to per *469 form besides keeping a lookout, or because of the position in which he was required to be for the performance of such duties, while this finding would relieve said employee of liability to plaintiff, it would not exculpate the defendant, Southern Railway Company. Arrowood v. R. R., 126 N. C., 629, 36 S. E., 151. The railway company was liable in damages, if it failed to perform its indispensable duty to provide for a proper and vigilant lookout by an employee on said train, who by the exercise of due care, could have seen a person on its track, or in a position of peril, near its track, in time to avoid an injury to him from the moving train. There was evidence that deceased could not have been seen by a person on the train a.t a greater distance than about 400 feet, because of a curve in the track; that deceased had gone upon the track as a licensee, and while lawfully walking thereon had become suddenly ill, and for that reason had sat down upon the end of the cross-tie; that he was sitting there as the defendant’s train approached him in an apparently unconscious and therefore helpless condition, and that the train which was 'moving at a rate of speed not less than fifteen miles per hour, could not have been stopped at that point within less than 600 feet. It was negligence for defendant, Southern Railway Company, to operate its train in such a manner as that it could, not be stopped before striking a person who had lawfully gone upon its track, and while walking thereon had suddenly become ill, and for that reason had sat down upon a cross-tie, where he remained in an apparently helpless condition. See Weston v. R. R., 194 N. C., 210, 139 S. E., 237. If the jury had found from the evidence that deceased by his own negligence contributed to the injuries which resulted in his death, then there was evidence from which the jury could have further found that notwithstanding such contributory negligence, the proximate cause of such injuries was the failure of defendants to exercise due care, after deceased could have been discovered, sitting on the end of the cross-tie, in an apparently helpless condition, to stop the train and thus avoid the injuries to deceased. The principle upon which the doctrine of the “last clear chance” is founded, is recognized and enforced in this jurisdiction, as just and necessary for the protection of human life. Redmon v. R. R., 195 N. C., 764, 143 S. E., 829. This case falls within the principles upon which Tyson v. R. R., 167 N. C., 215, 83 S. E., 318, was decided. These principles are well settled, and have been uniformly applied by this Court in decisions which are authoritative. Defendant cites and relies upon Holder v. R. R., 160 N. C., 4, 75 S. E., 1094, and Stout v. R. R., 164 N. C., 384, 80 S. E., 1118. These cases are commented upon by Brown, Jin his opinion in *470 the Tyson caso. They are distinguished upon the facts from the Tyson case. They are not controlling in the decision of the question presented by this appeal. It has been the policy of the law, certainly in this jurisdiction, as shown by numerous decisions of this Court, to hold railroad companies, and their employees, in charge of moving trains, to a high standard of duty towards persons who are or who may reasonably be expected to be on their tracks in front of a moving train. This policy is justified as tending to protect human life. That its vigorous enforcement may sometimes result in the recovery of damages in a case where upon its peculiar facts, the plaintiff does not seem to be entitled to damages does not require or justify a relaxation of well-settled principles. The judgment dismissing the action must be Reversed.