Syme v. Richmond & Danville Railroad

Avery, J.:

Counsel for plaintiff did not contend that the intestate was deficient in any of his senses, or wanting in physical power or mental faculties, and if they had there would have been no evidence to support the contention. A priori, the engineer had no reason to think him other than a man possessed of all of the usual powers of mind and body, and was warranted in assuming that he would step off the track and avoid a collision, until it was too late to save him. McAdoo v. Railroad, 105 N. C., 145; High v. Railroad, 112 N. C., 385. When a person is injured while walking on a railroad track by an engine that he might have seen by looking, the law, as a rule, imputes the injury to his own negligence. Meredith v. Railroad, 108 N. C., 616; Norwood v. Railroad, 111 N. C., 236. There being no testimony tending to bring this case within any exception to the general rule, we are of the opinion that there was no evidence of want of ordinary care on the part of the defendant, while, in any aspect of the case, the plaintiff’s intestate was negligent in getting upon the track in front of the engine without looking, and exposing his person to injury, when he might have seen that it was approaching and have avoided the collision by stepping off the track.

We cannot yield to the ingenious suggestion of the able counsel for the plaintiff that the engineer must have seen the long freight train and known the fact that the engine was “exhausting heavily,” so as to render intestate so insensible to the approach of the other train as if he had been deaf, and that therefore the defendant’s engineer was negligent in not attempting earlier to stop the engine. But it was the duty of intestate to look, as well as listen, under the circumstances, and he was negligent if he failed to use his eyes as well as his ears. McAdoo’s case, supra. On the other hand, the engineer was justified in assuming that intestate had looked, had notice of his approach, and would clear the track in ample time to save himself from barm. Even when a *566railroad company violates a statute or an ordinance by.running at a given rate of speed in a town or city, negligence will not be presumed in all cases. 2 Wood Railroad Law, 1097, and note. But in our case there was no evidence of the existence of a town ordinance, nor was any statute forbidding such running cited by counsel. And, no matter what the speed of the engine may have been, it did not appear that the accident occurred in a populous part of the city, or where there was at the time, or usually, such a number of persons using the track that an individual walking upon it would not be able readily to see a moving train, or that all who used it as a footway could not secure their safety by stepping off of the track. On the contrary, the undisputed evidence is that the plaintiff’s intestate had but to step to the ditch to place himself beyond the pale of danger, whether he was walking on the Raleigh and Augusta Railroad track or that of the North Carolina Railroad.

We think that the judgment should be Affirmed.