Norfolk Southern Railroad v. Whitehead

Sims, J., after making the foregoing statement, delivered the opinion of the court. As it appears from the foregoing statement of facts that the verdict of the jury must be sustained under the well-settled doctrine of the “last clear chance,” it will be necessary for us to consider but one instruction of the court below, which bears upon the duty of the defendant with respect to stopping its train under the circumstances of this case — that is, instruction “E” which was as follows: “The court instructs the jury that even though they may believe from the evidence that the plaintiff in this case was guilty of contributory negligence, yet if they further believe from the evidence that the defendant company knew of the plaintiff’s danger or by the exercise of ordinary care should have known of the plaintiff’s danger in time to have stopped its train and avoided the accident, it was its duty to do so, and if they believe from the evidence that the said defendant company failed to exercise this duty it is liable and your verdict should be for the plaintiff.” The objection urged to this instruction is that it imposes an absolute and unqualified duty upon the defendant to stop its train, and that it should have been qualified by the insertion of the words “by the exercise of ordinary care,” or words of similar import, after the words “avoided the accident” in the instruction. As a legal proposition this position is correct. The instruction as given should have been qualified as suggested, and not to do so was error. But upon the facts of the case as we must regard them to be, it plainly appears that this was error not prejudicial to the defendant, since with the train about 1000 feet away from the crossing when the motorman saw the plaintiff’s automobile stop upon the track, the jury must have found that by the exercise of ordinary care the defendant could have stopped its train [146] in time to have avoided the accident. Hence, under the rule on the subject too well settled to need citation of authority, this was harmless error. A number of questions are raised in the case with respect to whether the defendant was guilty of negligence in maintaining its crossing of the public road in proper condition; whether there was any evidence of an improper crossing to go to the jury; what was the degree of care required of defendant with regard to maintaining the crossing in proper condition; whether it was negligent in not sounding its whistle properly or sounding it too far away from the crossing; whether there was any evidence to go to the jury of the non-sounding of the whistle properly; whether the plaintiff was guilty of contributory negligence so as to bar his recovery in going upon the track without having looked and listened in such a manner as to make the looking and listening effective; whether in the instant case the latter should have stopped to make his looking and listening effective, etc.; but if both defendant and plaintiff were negligent in such matters, respectively, it is manifest that none of them in the instant case was the proximate cause of the injury. The doctrine of the last clear chance being applicable as aforesaid, what has been said above disposes of the case. Therefore, for the reasons heretofore stated, we find no error in the judgment complained of and it will be affirmed. Affirmed.