Little v. . R. R. , 119 N.C. 771 ( 1896 )

The following issues (without objection) were submitted to the jury:

"1. Was plaintiff injured by defendant's train?

"2. Did plaintiff by his own negligence contribute to his injury?

"3. Notwithstanding the contributory negligence of plaintiff, did defendant's engineer exercise ordinary care to prevent the injury?

"4. What damage, if any, has plaintiff sustained?"

His Honor's direction that the jury should answer the first issue "Yes" was proper, for it was admitted that the plaintiff was hurt by being struck by the defendant's train. He told the jury that upon the plaintiff's own testimony he was guilty of contributory negligence, and directed them to answer the second issue "Yes." The plaintiff excepted. The instruction was a correct one, and the exception is not sustained. The plaintiff had testified that the trestle upon which he was injured, was one hundred yards long and fifty feet high; and that hands were at work repairing it at the further end; that he saw when he got on the trestle a signboard notifying persons not to go on the trestle, and that when he went on it he knew it was about time for a train (776) to come along.

Beyond question he contributed to his own injury. Under the circumstances it was his duty not to go on the trestle. It was decided inClark v. R. R., 109 N.C. 430, that a person who places himself on a railroad trestle so high as to make it perilous for him to jump to the ground, is negligent, and that he is guilty of contributory negligence if he is injured by a passing train.

In reference to the third issue his Honor instructed the jury that even if the plaintiff was guilty of contributory negligence it was yet the duty of the engineer to use ordinary care to avoid injuring him. It was admitted by the engineer that he could have stopped the engine in time to prevent the injury of the plaintiff but that he did not; and his Honor told the jury that the defendant had to show to their satisfaction that although he did not stop the train, he yet exercised ordinary care under all the circumstances to prevent the plaintiff's injury. He further told the jury that the engineer was not expected to exercise infallible judgment, but only ordinary and reasonable care; and that "taking all the evidence together as a whole, if you believe the testimony to be true, the plaintiff can not recover, and it is your duty to answer the third issue `Yes,' for if the testimony is to be believed the engineer did exercise reasonable and ordinary care under the circumstances." The plaintiff excepted.

We are of the opinion that his Honor's instructions on the third issue were correct. The uncontradicted testimony was that this trestle was being repaired at the time of the accident, the workmen being then engaged, and had been for some considerable length of time just before; that frequently, probably every day, the workmen had stepped off the track on to the capsills on the side of the track at the approach of (777) train, and none of them were ever harmed. One witness testified that "it was a common thing for the railroad hands, every day, to get on the capsills of this trestle, and let trains pass." It was uncontradicted that the capsills extended a sufficient distance from the track to allow two men to stand on each one without harm or injury as the trains would pass over the trestle, and that the engineer in charge of the engine, on the occasion of the accident, had frequently seen the workmen get on the capsills for safety on the passing of trains. The engineer testified, that from the conduct of the plaintiff at the time of his injury, he believed the plaintiff was a workman of the railroad, and that as he had frequently done before he moved his engine on at the usual speed in crossing trestles; that the plaintiff, just as the hands were accustomed to do on the passing of trains, stepped off the track on to the capsill, and he thought it was a safe position, as he had often passed in like circumstances the workmen of the railroad without injury to them. It seems to us from the evidence that the engineer acted as a prudent man should have acted under all the circumstances. His conclusion that the plaintiff from his conduct on the trestle was a railroad workman, and that he had gotten on the capsill for safety, was a reasonable conclusion; and that being so, he was not negligent in driving his engine on at the usual speed in crossing trestles, for no workmen had ever been injured under like circumstances. It is true that an engineer situated as this one was at the time of this accident, is required if there be a reasonable doubt as to what course to pursue, to so act as to protect life. But he is not required to provide against contingencies which he reasonably has no ground to believe would happen; he is not compelled to provide against the (778) unexpected, the unusual, the extraordinary. Blue v. R. R., 116 N.C. 955; Tillett v. R. R., 118 N.C. 1031. The facts in this case are undisputed, and we think that the only inference that could be drawn from them by fair-minded men is that the defendant acted as a prudent man should have acted under all the circumstances, and that it used ordinary care to prevent the injury. "Where the facts are undisputed and but a single inference can be drawn from them, it is the exclusive duty of the Court to determine whether an injury has been caused by the negligence of one or the concurrent negligence of both of the parties." Russell v. R. R., 118 N.C. 1098. To the same effect are Ellerbee v. R. R., 118 N.C. 1024 and Hinshaw v. R. R., ibid., 1047.

The objections made by the plaintiff to the testimony ought to have been overruled, as they were, by his Honor. We have examined all the other exceptions made by the plaintiff to the rulings of the Court, and they ought not to be sustained.

NO ERROR.

Cited: Weeks v. R. R., 131 N.C. 81, 83.

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