Wyrick v. Southern Railway Co., 172 N.C. 549 (1916)

Nov. 22, 1916 · Supreme Court of North Carolina

172 N.C. 549

W. T. WYRICK, Administrator of NELLIE WYRICK, Deceased, v. SOUTHERN RAILWAY COMPANY.

(Filed 22 November, 1916.)

Railroads — Negligence—Pedestrians on Track — Assumptions in Avoidance — • Evidence — Trials—Nonsuit.

The intestate of the plaintiff was a schoolgirl on her way to school with other girls on a dirt road alongside the defendant’s right of way, and, seeing the train approach, went upon the track in an intervening cut. The other children climbed the side of the cut and avoided injury; hut the intestate, while leaving the track for a place of safety, where there was sufficient room for the train to pass, caught her foot in a switch rod, and was struck by the locomotive and killed. Held, a motion as of non-suit upon the evidence should have been allowed, upon the principle that the employees on defendant’s train had the right to assume, up to the last moment, that the intestate, in full possession of her faculties, would leave the track and avoid the injury. In this case there was no evidence that the engineer was negligent or that he could have avoided the injury after seeing the intestate’s peril.

Civil agtioN tried at August Term, 1916, of G-uhjtoRd, before Ferguson, J., upon these issues:

1. Was the intestate of the plaintiff killed by the negligence of the defendant, as alleged in the complaint? Answer: “Yes.”

2. "Did the plaintiff’s intestate by her own negligence contribute to her injury and death, as álleged in the answer? Answer: “Yes.”

3. Notwithstanding any negligence on the part of the plaintiff’s intestate, could the defendant by the exercise of due care and prudence have prevented the injury and death? Answer: “Yes.”

4. What damage, if any, is the plaintiff entitled to recover of the defendant? Answer: “$1,250.”

From the judgment rendered, defendant appealed.

L. Herbin, B. 0. Strudwick for plaintiff.

Wüson & Ferguson for the defendant.

BeowN, J.

At the conclusion of the evidence the defendant made a motion to nonsuit, which was refused by the court. This is the only assignment of error we deem necessary to consider. All the evidence in this case tends to prove that on 3 November, 1915, plaintiff’s intestate and daughter, Nellie, 12 years of age, in company with her brother and several other school children, was on her way to Bright-wood School, which was situated on the same side of the railroad as her residence. The dirt road ran along the eastern side of the railroad track to a point very near the schoolhouse. When these children reached Rudd station, instead of following the dirt road, they walked on the railroad track until they reached a small cut about 150 feet long and sloping away from the track. About the middle of the cut there was a switch which was constructed in the usual and customary manner upon long ties or sills which extended out from beyond the other ties and about 8 or 9 feet from the eastern rail. About 300 yards south of the cut in which the switch stand was located there was another deep cut, and from the mouth of the deep cut to and continuing through the smaller cut the track curved to the right. As the children were approaching the cut they heard and saw northbound passenger train No. 44 coming out of the deep cut and approaching the smaller cut. Instead of stepping off the track on the left before entering the cut, they ran on into the cut and, with the exception of .the plaintiff’s intestate, the children ran up the sloping bank of the cut on the left of the track. When the train was seen coming, plaintiff’s intestate, Nellie, entered the cut with the other children, and, instead of following them up the sloping sides out of the way of the train, undertook to pass between the switch target and the rail. Her foot was caught by the rod of the switch and before she could extricate it she was struck by the pilot beam of the engine and killed.

The evidence tends to prove that the train was running about 45 miles an hour, and that there was sufficient space between the rail and the bank of the cut, some 8 or 10 feet, for a passenger to have-stood and let the train pass without injury. There is evidence that tbe engineer saw tbe children as tbey ran into tbe cut and ran up tbe bank.

We are of opinion tbat tbe motion should have been sustained. It is settled by numerous decisions of this Court tbat when tbe engineer saw tbe girl upon tbe track be bad a right to suppose tbat she would get out of tbe way and follow tbe other children up tbe bank to a place of safety. As is said in Davis v. R. R., 170 N. C., 582: “A railroad company is not under any legal obligation to regulate tbe speed of its train for tbe convenience of those using its right of way, for its tracks are always places of danger, and tbe pedestrians who can easily step aside and avoid any danger should do> so on tbe approach of a train. He cannot require the company to slow up any more than to stop. He must look out for trains and take care of himself, and tbe engineer has tbe right to suppose tbat be has done so, or tbat be will do so in time to save himself.” '

It is not incumbent upon an engineer to stop bis train because be sees on tbe track ahead of him a pedestrian who is apparently in possession of bis faculties and in no difficulty. Tbe engineer has a right to assume tbat tbe individual will protect himself and leave the track in time to save injury. Tbe engineer has a right to assume this up to the last moment and until, by reasonable care, be can discover tbat tbe person on tbe track is unable to get off. Glenn v. R. R., 128 N. C., 184; Talley v. R. R., 163 N. C., 567.

There is no evidence in this case of any substantive negligence upon tbe part of tbe engineer, which would justify a verdict against tbe defendant on tbe first issue. Tbe plaintiff claims tbat tbe judgment should be sustained because of tbe finding on tbe third issue. We have examined tbe evidence and are unable to see anything tbat justifies tbe'conclusion that after tbe engineer discovered, or by reasonable diligence could have discovered, tbe terrible predicament in which tbe plaintiff’s intestate was placed, be could have stopped bis train.

Tbe motion to nonsuit is allowed.

Reversed.