McNeill v. . R. R. , 167 N.C. 390 ( 1914 )

CLARK, C. J., dissenting. This is an action instituted by the plaintiff, administrator of D. A. McAllister, for the wrongful death of his intestate, alleged to have been caused by the negligence of the defendant. The allegations of negligence in the complaint are as follows:

"That on the night of 29 December, 1912, the plaintiff's intestate, while walking near the track, or attempting to cross the track of the defendant's company, and dressed only in his underclothes, was struck by a locomotive of the defendant company, near the signal station at Beard, N.C. which locomotive was drawing a freight train, and which, at the time of the accident above referred to, was being run and operated without the use of headlights of any description, and at the time herein referred to was giving no signal by bell, whistling, or otherwise, in consequence of which acts on the part of the defendant company the plaintiff's intestate was struck, wounded and bruised, from the effects of which he died on ...... January, 1913.

(392) "That the injuries above referred to, and the death of plaintiff's intestate resulting therefrom, were caused by the negligence of the defendant company and its agents and employees."

It appears from the evidence that at about 2 o'clock a. m. on 29 December, 1912, D. A. McAllister was found on the right-hand side of the track of the defendant, between Wade and Beard, N.C. stations about 5 miles apart, and at a point about 150 yards from Beard station. The deceased was lying on the ground, with his head on a cross-tie, and had a large hole in his left side, caused by an injury from which he afterwards died. The deceased was drinking and dressed in his night-clothes.

It was in evidence that the right of way of the defendant company between these two stations had been used as a path for pedestrians for twenty-five or thirty years.

It also appears from the evidence that an extra freight train passed Wade station a short time before the deceased was found, which was running without a headlight, and that the only lights thereon were two small lights, one on each side, used as classification signals to indicate that the train was an extra. The witnesses McNeill and Gibson stated that this train, going southwardly, passed them as they were walking in the same direction toward Beard station, searching for deceased; that before they reached the deceased, and while some distance from Beard, they saw a bright headlight of a train coming towards them in a northwardly direction; that they could see all the way to Beard station, and that there was no man or any other object upon the track. It is admitted that the two trains passed at a point south of Beard station, and that the track between Wade and Beard is straight all the way.

It was contended by the plaintiff that the deceased was killed by the train which had no headlight. It was contended by the defendant that if the deceased was killed by any train, it was the train going north, which had a headlight, or that if killed by the train running without a headlight, the deceased was not struck by the engine, but by some other part of the train.

The defendant offered evidence tending to prove that the engine of the freight train was equipped with an electric headlight when it left Rocky Mount; that the light went out at Dunn because the wire that clutches the carbon burned in two, and that the engineer tried to repair it and could not do so.

His Honor charged the jury, among other things, as follows: "It is my business to assist you in arriving at a correct answer to the questions which will be given you in the form of issues by calling your attention, coolly and dispassionately, to what the contentions of the parties are, and what the evidence is sustaining those contentions, and what the law is which you must apply to the facts which have been testified to, in order to enable you to answer those issues.

"You are not to decide this case from any sympathy or (393) consideration for the deceased man, or any admiration for his good qualities or detestation for his bad qualities, if he should have any. You are not to decide the case for or against the defendant because it is a railroad. Railroads are extremely useful things, and if property is taken, by way of a jury's verdict, from a railroad when the evidence and law does not justify it, it is robbery — nothing less than robbery, and if that sort of thing prevails to any very large extent the railroads are crippled. You can easily see that every industry, the people from whom they buy, the lumber men and the steel men, are crippled, and those in turn from whom they buy are crippled, and we have a serious catastrophe. But not to award a verdict in accordance with the law and testimony in behalf of the plaintiff would be equal robbery. So as honest men and good jurors it is your business, without regard to any moving appeals or any power of oratory, coolly and quietly, without sympathy and without prejudice and without passion, but to dispassionately try to pass on the evidence and reconcile it and answer the questions which will be submitted to you." The plaintiff excepted.

"Now, in order to enable you to answer the first issue `Yes,' you must find first that he was struck by a train of the defendant; that that train had no electric headlight, as required by statute, and that not having the headlight was the cause, and the proximate cause, of the injury. It does not make one particle of difference whether there was any headlight or not. That might have been negligence, and I tell you, as argued by Mr. Shaw and admitted by Mr. Rose, it was negligence for them to run a train without an electric headlight, because the statutes so require. But that would be immaterial unless the train that did not have an electric headlight hit him, and would not have hit him if it had had an electric headlight. Do you understand that?

"The proximate cause is the dominant, efficient cause — that cause without the operation of which the accident would not have happened." The plaintiff excepted.

"If you shall find, by the greater weight of the evidence, the burden of proof being upon the plaintiff to so satisfy you, that the deceased was struck by the train which was running without a headlight, and that the failure to have a headlight was the cause, and the proximate cause as I have defined it to you, of the deceased being struck and killed — that is, that the deceased would not have been struck if the train had had an electric headlight — then you will answer the first issue `Yes.'

"But if you should not be satisfied by the greater weight of the evidence that the deceased would not have been struck if the train had had an electric headlight burning — that is to say, if you are not satisfied that

Mr. McAllister would not have been struck if the light had been (394) burning — then you will answer the first issue `No.'" The plaintiff excepted.

"And, again, if you should find from the evidence, and by its greater weight, that the deceased was not struck by the engine, but that the engine had passed the deceased and that he was struck by some other portion of the train, or by falling against it, or otherwise, then you should answer the first issue `No.'" The plaintiff excepted.

The jury answered the first issue as to negligence in the negative, and the plaintiff appealed from the judgment rendered in favor of the defendant. The exceptions chiefly relied on by the plaintiff's counsel in his carefully prepared brief are to the opening paragraph of his Honor's charge, upon the ground that it is an argument in behalf of the defendant, and to the charge that "In order to enable you to answer the first issue `Yes,' you must find first that he was struck by a train of the defendant; that that train had no electric headlight, as required by statute, and that not having the headlight was the cause, and the proximate cause, of the injury. It does not make one particle of difference whether there was any headlight or not. That might have been negligence, and I tell you, as argued by Mr. Shaw and admitted by Mr. Rose, it was negligence for them to run a train without an electric headlight, because the statutes so require. But that would be immaterial unless the train that did not have an electric headlight hit him, and would not have hit him if it had had an electric headlight. Do you understand that?"

The plaintiff does not except to the whole of the first paragraph of the charge. He omits from the exception the concluding sentence, which is an appeal to the jury to consider the evidence coolly and dispassionately and to answer the issues according to the law and the evidence.

The part excepted to, standing alone, might be objectionable; but when considered as a whole, as it is our duty to do, it contains no expression of opinion upon the facts, nor is it an argument in behalf of either party, and, on the contrary, it is an earnest invocation to the jury to free themselves from bias or sympathy and to decide the question submitted to them upon the evidence.

As was said by Associate Justice Walker, speaking for the Court inAman v. Lumber Co., 160 N.C. 374: "The criticism of the charge by defendant's counsel might be just and the exception to it well taken if it could be restricted to the detached portion thereof which is the subject of attack, as it is not quite as explicit, perhaps, as it should have been; but when these isolated sentences or extracts are construed with the other parts of the charge, and reviewing the latter in its (395) entirety and thus reading it as a whole, as we are required to do (S. v. Exum, 138 N.C. 599; S. v. Lance, 149 N.C. 551), the meaning of the judge could not well have been misunderstood by an intelligent jury. We have recently said that `The charge is to be considered as a whole in the same connected way in which it was given, and upon the presumption that the jury did not overlook any portion of it. If, when so construed, it presents the law fairly and correctly to the jury, it will afford no ground for reversing the judgment, though some of the expressions, when standing alone, might be regarded as erroneous.' Kornegayv. R. R., 154 N.C. 389; Thompson on Trials, sec. 2407."

We are also of opinion that it was the duty of his Honor to charge the jury as he did, that the burden was on the plaintiff to prove that the failure to have a headlight was the proximate cause of the death of the plaintiff's intestate, and that they must so find before they could answer the first issue "Yes."

The authorities fully sustain the position of the plaintiff that it is negligence to run a train without a headlight at night along a track frequented by the public; but a plaintiff cannot recover upon proof of negligence alone. He must go further and prove that the negligence complained of was the cause of his injury. Crenshaw v. R. R., 144 N.C. 314;Pritchett v. R. R., 157 N.C. 101; Henderson v. Traction Co., 132 N.C. 784.

In the first of these cases the Court said: "The burden is always on the plaintiff to show by a preponderance of the evidence that the defendant committed a negligent act, and that it was the proximate cause of the injury. The two facts must coexist and be established by the clear weight of the evidence before a case of actionable negligence is made out.Brewster v. Elizabeth City, 137 N.C. 392"; in the second: "In all courts where the common law is administered it is held that one cannot recover damages upon proof of negligence alone, and that he must proceed further and show that the negligence of which he complains was the real proximate cause of the injury"; and in the last: "It is generally held, and this we regard as the true doctrine, that the element of proximate cause must be established, and it will not necessarily be presumed from the fact that a city ordinance or statute has been violated. Negligence, no matter in what it may consist, cannot result in a right of action unless it is the proximate cause of the injury complained of by the plaintiff."

In Powers v. R. R., 166 N.C. 599, the principle was applied in an opinion written by the Chief Justice, and the following charge was approved: "If you should find from the evidence, by its greater weight, that the train was being operated without a headlight, that is (396) negligence; and if you should find that as a sequence of that negligence the plaintiff received his injury, you would answer the first issue `Yes.'"

Again in Saunders v. R. R., ante, 375, the Court said, in an unanimous opinion: "The Federal courts and the courts of this State concur in holding that a failure to exercise the diligence and care of a person of ordinary prudence, or a failure to perform a duty due from one to another, is negligence, and that if this breach of duty is the proximate cause of an injury, it is actionable."

The phrase, "continuing negligence," used in Stanly v. R. R.,120 N.C. 514, and repeated in the Powers case and in others, is strictly accurate when understood to mean that the negligence began anterior to and continued up to the injury; but such negligence does not absolve the plaintiff from the duty of showing that this negligence was the proximate cause of his injury, which is to be inquired of under the first issue, nor from the duty of exercising ordinary care for his own safety, which arises in the consideration of the issue of contributory negligence, the burden of this issue being on the defendant.

It is not the absence of the headlight, nor the impact of the train, which determines liability, but the impact of the train brought about by or as the proximate result of the absence of a headlight.

To illustrate: Suppose one is at work on an overhead bridge, and without fault on his part he falls on the track 5 feet in front of a rapidly moving train, which is running at night without a headlight, and is killed. Here we have negligence in the failure to have a headlight; but there can be no recovery, because the same result would have followed if there had been a headlight, and its absence has had nothing to do with the injury.

The present case is an apt illustration of the importance of adhering to this principle.

The deceased had been drinking heavily, and was going from place to place in the night-time in his night-clothes.

The evidence as to the cause of his death is circumstantial, and is consistent with his coming on the track suddenly in front of the train, in which event the presence of the headlight would not have averted death; and that this theory is permissible is shown by reference to the complaint, which alleges that the deceased was killed "while walking near the track, or attempting to cross the track of the defendant company."

Of course, if we are in search for technical error, we can find it. We can cut up the charge and take the single sentence, "It does not make one particle of difference whether there was any headlight or not," from the middle of a paragraph and declare it to be erroneous; but to do so we must violate the principle declared in fifty cases, that a charge must be read as a whole, and not by detached portions, and we (397) will establish a precedent that will render it impossible for any charge to stand the test of an appeal.

As was said in Revis v. Raleigh, 150 N.C. 355: "It is the well-settled rule of all appellate courts to read and construe the entire charge of the court and deal with it as a whole. It is nor permissible to make disconnected excerpts and seek to find reversible error. To do so would frequently result in new trials where it was manifest that no prejudicial error was committed or the jury misled."

When read as a whole, the objectionable sentence means that it makes no difference whether there was a headlight or not unless its absence was the cause of the death of the intestate.

We have examined the rulings upon the evidence and find no error in them.

The refusal to submit a third issue, as to the last clear chance, and the exceptions to charges upon the issues of contributory negligence and damages, need not be considered, as the jury has answered the first issue against the plaintiff.

The instruction prayed for by the plaintiff, as to the duty of defendant to keep a lookout, could not have been given, because the failure to perform this duty is not alleged in the complaint; and for the same reason the last paragraph of the charge excepted to is sustained.

The theory upon which recoveries are sustained when a person upon the track is killed or injured by a train running in the night without a headlight, although not apparently helpless, is that the absence of the headlight is negligence, and as its presence would probably give notice of the approach of the train by throwing light on the track and upon the person, the failure to have the light is some evidence of proximate cause.

If so, the principle does not apply if the injured person is not on the track or near it, and runs into the train.

No error.