Lee v. Atlantic Coast Line R. Co. , 237 N.C. 357 ( 1953 )

75 S.E.2d 143 (1953) 237 N.C. 357

LEE
v.
ATLANTIC COAST LINE R. CO.

No. 242.

Supreme Court of North Carolina.

March 18, 1953.

E. R. Temple, Jr., Smithfield and J. R. Barefoot, Benson, for plaintiff, appellant.

Shepard & Wood, Smithfield, for defendant, appellee.

DENNY, Justice.

The appellant assigns as error the refusal of the court below to permit one of the plaintiff's witnesses to testify to the contents of a conversation the witness had with a Mr. Hill, who was on the defendant's train at the time plaintiff's intestate was killed. The witness did not identify Mr. Hill as being in any way connected with the defendant, and the record does not disclose the substance or tenor of the conversation or that it would have tended to corroborate the testimony of the witness or the testimony of other witnesses who had testified for the plaintiff. Hence, this assignment of error is overruled. Armfield v. Raleigh & S. R. Co., 162 N.C. 24, 77 S.E. 963; Warren v. Susman, 168 N.C. 457, 84 S.E. 760; Hall v. Hall, 179 N.C. 571, 103 S.E. 136.

Assignments of error Nos. 2, 3, 4, 5 and 6 are based upon exceptions to the action of the court in sustaining the objections of the defendant to the admission of testimony with respect to a conversation the witness had with someone he referred to as the engineer, and what he overheard between this man and some other party whom he took for granted was an employee of the defendant. The plaintiff contends the conversations took place within five to seven minutes after the deceased was killed and were admissible as part of the res gestae. This evidence was offered for no other purpose. An examination of this excluded testimony which was given in the absence of the jury, reveals that the man described as the engineer is purported to have said to the witness: "I think I hit a man up the road, I am not sure. * * * he was scrambling around between the T-irons like he was trying to get off * * *. He was down between the T-irons." According to the witness the substance of the above statements were repeated in his presence to a "gentleman coming from the rear of the train."

We think the above statements, if made by an agent of the defendant, fall within the well defined principle of law that a mere narration of a past occurrence is only hearsay and is not admissible as against the principal or employer. Batchelor v. Atlantic Coast Line R. Co., 196 N.C. 84, 144 S.E. 542, 60 A.L.R. 1091; Hubbard & Co. v. Southern R. R. Co., 203 N.C. 675, 166 S.E. 802; Hester v. Horton Motor Lines, 219 N.C. 743, 14 S.E.2d 794; Coley v. Phillips, 224 N.C. 618, 31 S.E.2d 757.

Stacy, C. J., in speaking for the Court in Hubbard & Co. v. Southern R. Co., supra [203 N.C. 675, 166 S.E. 804], said: "It is the rule with us that what an agent or employee says, relative to an act presently being done by him within the scope of his agency or employment, is admissible as a part of the res gestae, and may be offered in evidence, either for or against the principal or employer, but what the agent or employee says afterwards, and merely narrative of a past occurrence, though his agency or employment may continue as to other matters, or generally, is only hearsay and is not competent as against the principal or employer."

The remaining assignment of error is based on an exception which challenges the correctness of the ruling of the court below on the motion for judgment as of, nonsuit.

The plaintiff's intestate having entered upon the defendant's railroad track without license, invitation, or other right, occupied the status of a trespasser at the time he was killed. The accident occurred approximately 200 yards from the nearest crossing. His act in placing himself in a dangerous position on the defendant's railroad track, constituted such negligence on his part as would preclude a recovery of damages from the defendant for his death, unless the defendant had the last clear chance to avoid the injury. Osborne v. Norfolk & W. R. Co., 233 N.C. 215, 63 S.E. 2d 147; Long v. Norfolk & W. R. Co., 222 N.C. 523, 23 S.E.2d 849; Justice v. Southern R. Co., 219 N.C. 273, 13 S.E.2d 553; Mercer v. Powell, 218 N.C. 642, 12 S.E.2d 227.

In order to recover of a railroad company for the death of a trespasser on its railroad track, under the application of last clear chance or discovered peril doctrine, the personal representative of the deceased trespasser must establish by competent evidence the following: (1) That the decedent was killed by the railroad company's train; (2) that the decedent at the time he was killed was down on the track in an apparently helpless condition; (3) that the engineer saw, or, by the exercise of ordinary care in keeping a proper lookout could have seen the decedent in time to have stopped the train before striking him; and (4) that the engineer failed to exercise such care, thereby proximately causing the death of the decedent. Osborne v. Norfolk & W. R. Co., supra, and cases cited therein.

It is admitted that plaintiff's intestate was killed by the defendant's train. But it is denied that he was down on the track in an apparently helpless condition. On the contrary, the only witness who saw the decedent on the railroad track was the defendant's engineer who was plaintiff's witness. He testified the decedent was sitting on the west rail facing east. He blew the whistle and the man began to move. He applied his emergency brakes and stopped the train as quickly as possible.

The doctrine of last clear chance does not apply where a trespasser or licensee is upon a railroad track, and is apparently in possession of his normal faculties, the engineer of the train producing the injury having no knowledge or information to the contrary. In such cases the engineer is under no duty to stop his train or to slacken its speed. He has the right to assume that such person will use his faculties for his own protection and get off the track in time to avoid injury. Mercer v. Powell, supra.

The last clear chance does not mean the last possible chance to avoid the accident, 65 C.J.S., Negligence, § 137(2) (e), p. 774 et seq.; Aydlett v. keim, 232 N.C. 367, 61 S.E.2d 109. It means such chance or interval of time between the discovery of the peril of the injured party, or the time such peril should have been discovered in the exercise of due care, and the time of his injury as would have enabled a reasonably prudent person in like circumstances to have acted in time to have avoided the injury. Matheny v. Central Motor Lines, 233 N.C. 673, 65 S.E.2d 361; Mount Olive Manufacturing Co. v. Atlantic Coast Line R. Co., 233 N.C. 661, 65 S.E.2d 379; Aydlett v. Keim, supra; Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S. E.2d 337.

In our opinion, the evidence presented by the plaintiff in the trial below is insufficient to invoke the last clear chance or the discovered peril doctrine, and the judgment as of nonsuit entered below is affirmed.

Affirmed.