Thompson v. . R. R. , 149 N.C. 155 ( 1908 )

Appeal from a nonsuit in an action for wrongful death. The evidence must be taken in the most favorable light for the appellant and with the most favorable inferences the jury would be authorized to draw from it. Powellv. R. R., 125 N.C. 372, and cases there cited. If there was any evidence tending to show that the death of the intestate was the result of the negligence of the defendant, it should have been submitted to the jury.

There was evidence that the plaintiff's intestate was seen at the defendant's station at Star about 9 o'clock at night, drinking, and eating peanuts; that a half hour thereafter, a mixed train of the defendant came from the north, running at a high speed — thirty or forty miles an hour — with no headlight; that it was a dark night; that the engine gave no signals, before or after crossing a country road near the corporate limits, nor at a crossing a few hundred yards further north; that about daylight the next morning the deceased was found in a dying condition, forty yards south of the crossing, in the corporate limits, with (157) his head crushed, between the ends of the crossties, his hat torn, cut and greasy near him; that his clothes were bloody on one side, and blood was on the ground between ends of ties, and evidence on his clothes and on the ground near him, that he was eating peanuts at the time he was killed or shortly before; that his skull was driven in, and there were cuts and bruises on other parts of his body.

The defendant was negligent in operating a train at night without a headlight. Willis v. R. R., 122 N.C. 909. The evidence was sufficient to authorize a finding that the deceased was killed by the defendant's train. The uncontradicted testimony was that the defendant was operating its train, at a high speed, on a dark night without a headlight, within the boundaries of an incorporated town, without giving any signals of its approach. The evidence is almost identical with that in Powell v. R. R.,125 N.C. 372, which was held sufficient to support a verdict for the plaintiff. Besides the authorities cited in that case, Powell v. R. R., has itself been cited and approved since then in several cases, among them Hordv. R. R., 129 N.C. 307; Clegg v. R. R., 132 N.C. 294; Butts v. R. R.,133 N.C. 83. There was sufficient evidence to entitle the plaintiff to his constitutional right to have it passed on by the jury.

As the case goes back, the defendant can, if it chooses, have the circumstances explained by its engineer. If neither the engineer nor fireman saw the man when he was struck, there was negligence (Arrowood v.R. R., 126 N.C. 629) in not keeping a proper lookout, unless they were prevented from seeing by the negligence of the defendant in not furnishing a headlight, should the jury find that there was no headlight which, as the evidence now stands, is uncontradicted.

We think it was also error to exclude the evidence offered to prove that the defendant's track within the town limits was habitually used as a walkway, which, counsel stated, would, if admitted (158) have been followed by proof that this fact was well known to the defendant. The judgment of nonsuit is

Reversed.

Cited: Hill v. R. R., 166 N.C. 597; Powers v. R. R., ibid, 600.