Lea v. Durham & Northern Railroad

EuRciíKS, O. J. Sidney Lea, the intestate of the plaintiff, was run o'ver and killed by defendant’s freight train in the city of Durham, about 8 o’clock in the morning, on or about the 1st day of November, 1900. The defendant, for the purpose of making up a freight train, was moving two freight cars, with an engine between them, and the deceased was standing on the end of the cross-ties of the defendant road. The defendant's track is on the north side of one of the streets of Durham, and is not used as a street, though persons occasionally travel it on foot, there being a clear street of fifty feet besides that portion occupied by defendant’s road, kept up by the city as a street, and was in good condition at that time. There was no one on the front car in the direction the train was moving at the time the intestate was killed. And it was in evidence that the city of Durham had an ordinance against running a train more than eight miles an hour; and there was evidence tending to show that this train was running at a greater rate of speed than the ordinance allowed at the time the intestate was killed. There was also evidence tending to show that no bell was rung or whistle sounded by the defendant. Wiley Weaver, a boy about 14 years old, testified: “We walked near the track about ten minutes; we were going around to see the town; went by a fine house, looked at the yard, and went by a street near the railroad, and we stopped to look at some letters on the house, and then we stepped out there to look at the train couple up; and he asked me if I knew what the letters were, [461] and I told Mm ‘No/ I did not; to come and let ns go to market ; be said to bold on a minute, be would see tbe train couple up and be would go, and I turned around and said, ‘Come on, I’m in a burry/ and be said, ‘Go on, I’ll catcb you/ and I turned and looked back and tbe train was in about two yards of bim, and I told bim to look out, tbe train would run over bim, and tbat is all I think of; * * * about tbe time I called bim, tbe train struck bim on side under bis arm ratber from tbe back.” There are no exceptions in tbe Judge’s charge, but at tbe close of bis charge be says: “Defendant excepts to tbe Court, giving so much of tbe charge as is embraced in numbers 1 to 2, 3 to 4, and 5 to 6.” And upon examination we find tbat no such numbers appear in tbe charge. This throws upon us tbe burden of examining tbe entire charge, or, in other words, makes it a broadside exception. There has certainly been carelessness, in making up tbe case on appeal or in making out tbe transcript of record. But tbe point in tbe case, as we view it, seems to be sufficiently presented by tbe defendant’s prayers for instruction and their refusal by tbe Court. There are quite a number of prayers for instruction on tbe part of defendant. A number of them are refused “except as given in tbe charge,” and, as tbe case is made up, there is nothing to point us to tbat part not given; while a number of them are refused without any reference to what is given in tbe charge, and we prefer to put our opinion on those. Tbe main question, and tbe one upon which tbe case depends, as we think, is tbe contributory negligence of plaintiff’s intestate; and this is presented by defendant’s fifth and seventh prayers for instruction, both of which the Court refused to give. Tbe fifth prayer is as follows: “Tbat taking tbe plaintiff’s evidence, and also tbe defendant’s evidence (which latter does not furnish any contradic462 .tiou as bearing upon the third issue), and the conclusion • could not reasonably be avoided that the plaintiff’s intestate, by his own negligence, contributed to cause the injury.” The seventh prayer is as follows: “In this case, taking all the evidence together, there -was nothing which placed the intestate at any disadvantage as regards avoidance of this injury, and when such is the case no recovery can be had when each party, that is to say, both intestate and the railroad . company, were negligent.” We think the defendant and the intestate were both guilty of negligence; this was so found by the jury under the instruction of the'Court, and was not excepted to. The intestate was killed in broad daylight, about 8 o’clock in the morning. It is true, he was killed in the city of Durham, on the defendant’s railroad track, which is constructed on the north . side of the street, not used as a part of the street — there being fifty feet of said street in good condition and unobstructed in any way. It is contended by the plaintiff that this is a fact in its favor, in determining the liability of the defendant, but it does not appear so to- us. It may be a reason going to show the defendant’s negligence, but this does not help the plaintiff, as the defendant is found to have been negligent. And it may be a reason why the intestate should have exercised more care, as he was in town on the railroad track and saw that the road was engaged in shifting cars and making up a train. But this has but little to do with the case, as presented to us, as the intestate was also found to be guilty of "negligence. Nor do we see that the testimony of Wiley Weaver affects the case. He says that he looked back, the train was in two yards of intestate, and struclc him just about the time he called to him to loolc out or he would be struclc. This being so-, the rate of speed at which the train was mov-'ing could have had no- effect; it was too late when he called [463] to do any good, as the intestate was stricken -just about the time Ibis warning’ wa§ given. The intestate was not killed at a street crossing, nor on a track much used, even ás a foot-way. The case does not fall under any of the exceptions that require that the whistle should be sounded or the bell should be rung, or the tráin stopped. He was not an infant, as in Bottom’s case, 109 N. C., 72; nor drunk and down, as in Lloyd’s case, 118 N. C., 1011; npr prostrate on the track, as in Dean’s case, 107 N. C., 686; nor on a trestle, nor in any other dangerous situation putting him at a disadvantage, as in Clark’s case, 109 N. C., 430, or McLamb’s case, 122 N. C., 862; nor was it in the night time with no headlight, as in Stanly’s case, 120 N. C., 514, and Purnell’s case, 122 N. C., 832; nor was he at a crossing, as in Edwards’ case at this term. And the doctrine of the last clear chance- — proximate cause — does not arise in this case. Both were guilty of negligence, and both were on equal terms. The intestate was at no disadvantage. He was on equal opportunities with the defendant. Neal v. Railroad, 126 N. C., 639. The intestate was, unfortunately, killed, but it will not do- to say that the railroad company is liable in damages for every man killed by its trains. So far as we remember, every principle involved in this case is decided in Neal’s case, and that case must control this case. We do not think the plaintiff was entitled to recover upon the evidence. There was another question presented by the case on appeal- — -as to the receipt given by the plaintiff- — but we have not found it necessary to consider that matter. There was error in refusing the fifth and seventh prayers of defendant for instructions to the jury. Error — New Trial.