{ "id": 8659495, "name": "E. F. WITSELL v. WEST ASHEVILLE AND SULPHUR SPRINGS RAILWAY COMPANY", "name_abbreviation": "Witsell v. West Asheville & Sulphur Springs Railway Co.", "decision_date": "1897-02", "docket_number": "", "first_page": "557", "last_page": "563", "citations": [ { "type": "official", "cite": "120 N.C. 557" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "43 N. Y., 123", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2048096 ], "opinion_index": 0, "case_paths": [ "/ny/43/0123-01" ] }, { "cite": "56 Ill., 138", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 817766 ], "pin_cites": [ { "page": "142" } ], "opinion_index": 0, "case_paths": [ "/ill/56/0138-01" ] }, { "cite": "23 Ill., 357", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5805176 ], "opinion_index": 0, "case_paths": [ "/ill/23/0357-01" ] }, { "cite": "111 N. C., 482", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651715 ], "pin_cites": [ { "page": "487" } ], "opinion_index": 0, "case_paths": [ "/nc/111/0482-01" ] }, { "cite": "114 N. C., 203", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649694 ], "opinion_index": 0, "case_paths": [ "/nc/114/0203-01" ] }, { "cite": "94 N. C., 497", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651404 ], "opinion_index": 0, "case_paths": [ "/nc/94/0497-01" ] }, { "cite": "102 N. C., 390", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649804 ], "opinion_index": 0, "case_paths": [ "/nc/102/0390-01" ] }, { "cite": "109 N. C., 72", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8649192 ], "opinion_index": 0, "case_paths": [ "/nc/109/0072-01" ] } ], "analysis": { "cardinality": 648, "char_count": 12689, "ocr_confidence": 0.454, "pagerank": { "raw": 1.1725454043145602e-06, "percentile": 0.9871589038588736 }, "sha256": "07a4babd242f85c90401f55fceef98eb3ddbf46e0aae555c6192591221270a68", "simhash": "1:e4853c45a4d2123e", "word_count": 2198 }, "last_updated": "2023-07-14T18:07:11.774475+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "E. F. WITSELL v. WEST ASHEVILLE AND SULPHUR SPRINGS RAILWAY COMPANY." ], "opinions": [ { "text": "OuaRK, J. :\nThe statements and declarations of the motorman, made to plaintiff just preceding the accident as to the condition of the track, as to his not having sand and the car being late and overloaded, and the rapidity of the speed, were competent as part of the res gestae and also as fixing the company with knowledge of facts requiring a greater degree of care and prudence than ordinary. 4 Thompson Corp., Sections 4913, 4914; Morawetz Corp., Section 540a.\nEach of the four special instructions asked by the defendant concludes by asking the court to instruct the jury that the \u201cplaintiff cannot recover.\u201d As the jury now respond to issues and do not find a general verdict, it was not error to refuse these prayers, which would not aid the jury to answer the issues and might confuse them. Bottoms v. Railroad, 109 N. C., 72; Farrell v. Railroad, 102 N. C., 390; McDonald v. Carson, 94 N. C., 497. If a prayer is in part erroneous, the court may decline it. The Judge is not called upon to sift out tbe sound part and give it. State v. Melton, at this term. The plaintiff, having ashed fourteen instructions, each one numbered and all of which were given, the defendant excepted \u201cto the giving of the special instructions prayed for by plaintiffs, from one to fourteen, both inclusive.\u201d We cannot concur with the defendant\u2019s counsel that this is objectionable as a \u201cbroadside' exception.\u201d It is a specific exception to each and every one of the fourteen special instructions. It puts the judge on notice to send up the evidence applicable to each, and the opposite party knows that each of the fourteen propositions of law contained in those prayers will be challenged here. When an exception is made \u201cto the charge as given,\u201d this, by repeated decisions of this court, is invalid except when the charge contains only one proposition of law. When it contains more than one, the appellant must point out each objectionable proposition of law in the charge by an exception embracing it, and the Statute gives him ten days after the trial to scrutinize the charge and make his exceptions. The record, as has been repeatedly said, should not be encumbered with any part of the charge or of the evidence which is not required to point out or throw light upon the matters excepted to. To permit a broadside exception \u201cto the charge as given,\u201d would require all the evidence and all the charges in every case to be sent up, with great and needless addition to the costs, and would be unjust to the appellee, for it would give him no knowledge of what propositions of law would be called in question upon the appeal so that his counsel might prepare himself thereon. But The Code does not require refinements, and when prayers for instruction are asked and given, and the opposite party excepts, giving the numbers of the instructions excepted to, this is specific information to the appellee which would not be fuller if a separate exception was made seriaUm, to each instruction given.\nThe third instruction given at request of plaintiff. \u201cIt is the duty of the defendant to provide its cars with all known and approved machinery necessary to protect its passengers from injury,\u201d is too broad and exacting. Many appliances and devices \u201cnecessary to protect passengers from injury\u201d are not yet invented, and it is little short of requiring the use of them that the company shall adopt all such when invented as soon as \u201cknown and approved.\u201d Many inventions are \u201cknown and approved\u201d long before they come into general use, and to thus require common carriers to adopt the latest and best appliances is too harsh and unreasonable. Janney couplers, Miller platforms, air brakes, electric lighting for cars, and many other improvements were \u201cknown and approved\u201d by some, and possibly by many people, before they came into general use. The rule as to the conduct of common carriers in managing transportation is thus stated by Burwell, J., in Haynes v. Gas Co., 114 N. C., 203, 211: \u201cPassengers on railroad trains have a right to expect and require the exercise by the carrier of the utmost care, so far as human skill and foresight can go, for the reason that the neglect of duty in such cases is likely to result in great bodily harm, and sometimes death, to those who are compelled to use that means of conveyance.\u201d Rut this applies to the management and not to the kind of machinery and appliances to be furnished. In Mason v. Railroad, 111 N. C., 482, 487, it is said: \u201cIt is not the duty of railway companies to furnish machinery of the very best varieties or to attach appliances of the latest and safest kinds, but it is culpable to use cars or engines of any particular pattern which an ordinary inspection would show to be defective;\u201d but this has reference to furnishing machinery and appliances when the complaint comes from an employee who has been injured. To draw the rule as to the machinery and appliances which it is negligence not to furnish as to passengers is more difficult. The rule laid down by his Honor is incorrect. It would discourage the building of new roads if every corporation is held to so strict a rule that it must keep a look out for improvements and inventions and, when one such is \u201cknown and approved,\u201d that it is negligence to fail to buy it. Such rule is unreasonable and compliance with it impracticable. The prompt introduction of so valuable and much needed an improvement as the Janney coupler was beyond the means of many corporations, and when the Act of Congress made their use in Interstate commerce imperative, a date was set years ahead for the Act to go into operation. The courts cannot act precipitately in such matters. Before it is negligence not to adopt improved appliances or machinery there must something more appear than that they are \u201cknown\u201d and \u201capproved.\u201d The correct rule is more nearly this, \u201cIt is negligence not to adopt and use all approved appliances which are in general use and which are necessary for the safety of passengers.\u201d To require an adoption by any particular defendant, before such appliances have come into ordinary use, as soon as \u201cknown and approved,\u201d is simply to say that each corporation must have the !\u2018latest and best.\u201d The burden of looking out and buying each new appliance is too great. The rule has also been thus stated, \u201cIt is the duty of the carrier to furnish everything necessary to the security of their passengers which is reasonably consistent with the business of the carrier.\u201d 2 Wood Railways, Section 301; or, \u201capproved appliances in general use.\u201d 3 Elliott Railways, Section 1224; or that \u201cthe carrier shall do all that human care, vigilance and foresight can reasonably do, consistentlv with the mode of conveyance and the practical operation of the road.\u201d Fuller v. Talbott, 23 Ill., 357. \u201cA company cannot be required, for the sake of making travel upon their road absolutely free from peril, to incur a degree of expense \u25a0which would render the operation of the road impracticable. It would be unreasonable, for example, to hold that a road bed should be laid with ties of iron or cut stone, because in that way the danger arising from wooden ties, subject to decay, would be avoided, but, on the other hand, it is by no means unreasonable to hold that if wood ties are used they must be absolutely sound and roadworthy.\u201d Railroad v. Thompson, 56 Ill., 138, 142. The carrier must not be lacking in any appliances which sound rules require it should have, but it is not bound to use every means scientific skill might suggest to\u2022 prevent accidents. Steinway v. R. Co., 43 N. Y., 123. On English railways' no railroad tracks are allowed to cross a public road on a grade, but they always cross either below or above it, and flagmen are stationed at short distances along the entire line and there are other precautions which add to the security of travel, but the expense of which few railroads in this country are yet able to bear. If an appliance is such that the railroads should have it, the poverty of the company is no sufficient excuse for not having it. Rut whether the corporation is negligent not to have it, depends not upon the bare fact that its use would conduce to greater security, as the expensive appliances above mentioned, nor upon its being \u201cknown and approved\u201d or \u201cthe latest and best,\u201d but the more reasonable and just rule is, as above stated, that the carrier must have \u201call approved appliances that are in general use and which are necessary for safety of passengers.\u201d In Mason v. Railroad, supra, it was declared that the time had then arrived when it was negligence not to have \u201cself-couplers\u201d and \u201cair brakes\u201d on passenger cars, but that it was too soon to hold it culpable negligence not to have such appliances on freight cars. The law is reasonable and just, alike to the carrier and the passenger. It does not require the carrier to adopt each appliance as soon as \u201ckno^n and approved,\u201d nor will it justify the retention of old appliances when new and better ones are in general use. The well known homely lines roughly express the safest course:\n\u201c Be not the first by whom the new is tried, Nor yet the last to lay the old aside.\u201d\nWhile the law does not require the adoption of the \u201clatest and best,\u201d self-interest will, in reasonable time, bring all valuable improvements into general use, and then the corporation which is not sufficiently progressive will be moved by fear of liability for negligence from disregarding the interests of the public.\nIt is not necessary to consider the other points raised by the exceptions, as they may not arise, or may be presented in a different form, on another trial. For error in granting the third prayer for instruction there must be a new trial.\nNew Trial.", "type": "majority", "author": "OuaRK, J. :" } ], "attorneys": [ "Messrs. L. M. Bowrne and T. II. Gobi), for plaintiff.", "Messrs. Merrimon & Merrimon and Davidson <& Jones, for defendant (appellant)." ], "corrections": "", "head_matter": "E. F. WITSELL v. WEST ASHEVILLE AND SULPHUR SPRINGS RAILWAY COMPANY.\nAction for Damages \u2014 Street Railways \u2014 r-Injunj to Passenger\u2014 Boidence \u2014 Declaration of Nmployee of Defendant as to Condition of Track, Car, fc. \u2014 Res Gestae \u2014 Negligence\u2014Safe Appliances \u2014 Instructions.\n1. In the trial of an action for injuries caused by the derailing of a street car because of excessive speed in going down a steep grade, statements made to a witness by the motorman of the street railway company, immediately preceding the accident, as to the condition of the track and the want of sand and as to the car being overloaded and behind time, were competent as part of the res gestae and also as fixing the company with knowledge of facts requiring a greater degree of care and providence than ordinary.\n2. Inasmuch as the jury under the practice in this State responds to issues submitted and do not find a general verdict, it is not error, in the trial of an action involving several issues, to refuse to charge that, on certain showing, the \u201c plaintiff cannot recover.\u201d\n3. An exception \u201cto the giving of the special instructions prayed for, &c., from one to fourteen, both inclusive,\u201d is a specific exception to each and every one of the fourteen special instructions so numbered, and is as available as if a separate exception was made seriatim to each instruction.\n4. In the trial of an action for injuries caused by the alleged negligence of a street railway company in not providing proper appliances, &c., it was error to charge that a street-car company must proVide - \u201call known and approved machinery necessary to protect its passengers,\u201d the true rule being that it is negligence not to adopt and use all approved appliances which are in general use and necessary for the safety of passengers.\nCivil aotioN, tried before Bryan, J., and a jury, at December Term, 1896, of BuNcoMbe Superior Court, for damages sustained by the plaintiff as a passenger on the street railway, which, it was alleged, negligently permitted its car to run down hill at a rapid speed and without proper appliances, whereby the car was derailed and the plaintiff injured. The usual issues as to negligence, contributory negligence and amount of damages were submitted. Verdict and judgment for the plaintiff. Appeal by the defendant, who assigned the following errors: 1. To the admission by the court of the testimony of J. D. Davis, to which objection and exception were made at the trial. 2. To the refusal of the court to give the first and fourth special instructions requested by the defendant. 3. To the modification or qualification of the second instruction prayed for by the defendant, 4. To the giving of the special instructions prayed for by the plaintiff, from one to. fourteen, both inclusive. 5. To the judgment of the court.\nMessrs. L. M. Bowrne and T. II. Gobi), for plaintiff.\nMessrs. Merrimon & Merrimon and Davidson <& Jones, for defendant (appellant)." }, "file_name": "0557-01", "first_page_order": 585, "last_page_order": 591 }