{
  "id": 8652340,
  "name": "WILLIAM M. WRIGHT v. SOUTHERN RAILWAY COMPANY",
  "name_abbreviation": "Wright v. Southern Railway Co.",
  "decision_date": "1911-05-26",
  "docket_number": "",
  "first_page": "325",
  "last_page": "330",
  "citations": [
    {
      "type": "official",
      "cite": "155 N.C. 325"
    }
  ],
  "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": "132 N. C., 855",
      "category": "reporters:state",
      "reporter": "N.C.",
      "opinion_index": 0
    }
  ],
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  "last_updated": "2023-07-14T20:21:07.457528+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "WILLIAM M. WRIGHT v. SOUTHERN RAILWAY COMPANY."
    ],
    "opinions": [
      {
        "text": "AlleN, J.,\nafter stating tbe case. It is true, as contended by tbe learned counsel for tbe plaintiff, tbat tbe defendant must plead contributory negligence, and tbat tbe plea is not good wben it does no more tban deny tbe negligence of tbe defendant and allege tbat tbe plaintiff was injured 'by bis own negligence. Re1-visal, sec. 483; Cogdell v. R. R., 132 N. C., 855.\nThe defendant, as appears from tbe answer, has done more tban this, and we think it is entitled to avail itself of tbe defense. It has alleged tbat tbe plaintiff entered upon tbe track of tbe defendant without looking and listening, and tbat be recklessly attempted.to cross tbe track in front of an approaching train.\n~We also concur in tbe interesting and able discussion of tbe relative functions of tbe judge and jury, and of tbe importance of preventing encroachment by one on tbe powers of tbe other, but we must recognize tbe principle, firmly established, tbat tbe judge must decide, as matter of law, the preliminary question whether there is any legal evidence to be submitted to tbe jury.\nIn the determination of this question, caution should be observed and tbe construction of the evidence most favorable to the plaintiff should be adopted.\nConsidering tbe evidence in this light, we must sustain tbe ruling of tbe judge, as it appears clear to us tbat tbe plaintiff was guilty of contributory negligence on his own evidence.\nThere was much controversy at one time 'as to the right of tbe defendant to avail itself of tbe plea of contributory negligence on a motion to nonsuit, but it is now the accepted doctrine with us tbat it can do so if it is disclosed by tbe evidence of tbe plaintiff. If tbe plaintiff entered on tbe track without looking and listening, or if be looked and listened and attempted to drive in front of the train, in either case be would be guilty of contributory negligence.\nHe says tbat wben be was sixteen or seventeen feet from tbe track, Hall, who was in tbe buggy with him, told him be beard another train, and jumped out and told him to whip up or be would be caught; tbat be turned and saw tbe train, two or three rail lengths from him, and tbat be whipped bis mare to force him across.\nIt is true be was not injured on tbe crossing, but be would not have been injured at all if be bad not negligently placed bimself in a position of danger.\nTbe citation of authority is needless, as there is no controversy between tbe plaintiff and tbe defendant as to what tbe law is, but as to its application.\nAffirmed.",
        "type": "majority",
        "author": "AlleN, J.,"
      }
    ],
    "attorneys": [
      "James II. Merrimon and Bourne, Parker & Morrison for plaintiff.",
      "Moore & Rollins and W. B. Rodman for defendant."
    ],
    "corrections": "",
    "head_matter": "WILLIAM M. WRIGHT v. SOUTHERN RAILWAY COMPANY.\n(Filed 26 May, 1911.)\n1. Pleadings \u2014 Contributory Negligence \u2014 Allegations Sufficient.\nA plea of contributory negligence, in an action alleged to have been caused To plaintiff as a result of baying crossed defendant\u2019s track in a buggy at a public crossing in front of a moving train, is sufficient which alleges that the plaintiff entered upon tbe track of tbe defendant without looking and listening, and that be recklessly attempted to cross.\n2. Evidence \u2014 Legal Sufficiency \u2014 Questions for Court.\nTbe judge should decide, as a matter of law, whether there is any legal evidence sufficient to be submitted to the jury.\n3. Nonsuit \u2014 Contributory Negligence \u2014 Plea Available, When.\nA defendant may avail himself of the plea of contributory negligence on a motion to nonsuit upon evidence introduced by the plaintiff.\n4. Railroads \u2014 Contributory Negligence \u2014 Effect\u2014Causal Connection.\nWhen one has negligently placed himself on a railroad 'track in danger of an approaching train, and injurious consequences result from other sources, harmless in themselves, such as driving into a post on the other side of the track, the contributory negligence of the person so acting will bar his recovery in his action for damages alleged against the railroad company.\n5. Railroads \u2014 Crossings \u2014 \u201cLook and Listen\u201d \u2014 Contributory Negligence \u2014 Nonsuit.\nWhile passing in a buggy across a railroad ti;ack closely in front of defendant\u2019s moving train, of which plaintiff did not know beforehand, the plaintiff\u2019s horse became frightened by the smoke and noise of the train, and the plaintiff whipped up his horse to get across from the danger of being run over, and ran into a post on the other side of the track, to his injury. Held, the failure of plaintiff to look and listen before entering upon the track, and to heed the noises of the approaching train and a warning given by his companion, who jumped out of the buggy in time, -was such contributory negligence as to bar his recovery of damages.\nAppeal by plaintiff from Gouncill, J., at tbe December Term, 1910, of BuNCOMbe.\nThis is an action to recover damages for personal injury, on tbe ground of negligence.\nTbe defendant denies that it was negligent and, among other things, alleges that the plaintiff\u2019s injuries were caused by his own negligence and want of due care in attempting to drive across defendant\u2019s railroad at its crossing, without looking or listening for defendant\u2019s approaching train, as it was his duty to do for his own safety. The defendant says that the plaintiff did not look or listen for the approach of defendant\u2019s engine or train, as it was his duty, under the circumstances, to do, and that he could, had he looked and listened, have seen and heard the approach of defendant\u2019s engine in time to have placed himself out of danger; in fact, the defendant alleges that it did blow its whistle at the usual place for blowing for said crossing, about three hundred yards from said crossing, while approaching the same, and that the plaintiff, as well as other persons, heard the same, and instead of remaining in a place of safety until after defendant\u2019s engine would pass said crossing, as it was his duty to do, he carelessly, recklessly and negligently, without due care for his own safety, violently whipped his horse, driving him and the buggy drawn by said horse across defendant\u2019s railroad track in front of defendant\u2019s approaching engine to a place of safety beyond, after which he recklessly and carelessly so drove said horse that said buggy in which the plaintiff was driving, at a distance of about thirty-six feet from the defendant\u2019s said railway and crossing, struck a post, injuring said buggy and throwing the plaintiff therefrom, injuring the plaintiff thereby, without any fault' or negligence on the part of the defendant or its employees who were running said engine very slowly, not exceeding twelve miles an hour, its engineer and fireman all the while fully complying with their duty by keeping a constant lookout ahead, and who did, as soon as the plaintiff approached said railroad track or crossing near enough to become dangerous, apply the emergency brake and all other appliances at hand and stopped said engine before reaching said crossing, or just as it reached the same, without striking said horse and buggy of the plaintiff or the plaintiff himself. Had the plaintiff looked or listened before attempting to drive across said crossing, as it was his duty to do, he could have seen and heard said east-bound engine in ample time to have avoided the accident, but in total disregard of bis own duty, be carelessly and negligently attempted to drive bis borse and buggy across defendant\u2019s railroad at said crossing, and in doing so struck bis borse violently witb tbe whip, thereby frightening him and causing him to run against tbe said post, injuring tbe plaintiff, if be was injured at all.\nTbe plaintiff introduced a rule of tbe defendant which reads: \u201cPassenger trains in tbe same direction must keep at least ten minutes apart; freight trains fifteen minutes apart, except when closing up at stations or at meeting or crossing points, except where block signals are used.\u201d\nTbe following is tbe statement of facts and tbe evidence taken from tbe brief of tbe plaintiff:\nTbe defendants admits that on tbe 6th day of September, 1909, tbe plaintiff was injured in attempting to cross it's track witb bis buggy; that plaintiff\u2019s borse became frightened by an approaching train and plaintiff was thrown out against a post and injured.\nTbe plaintiff testified in bis own behalf that on 6 September, 1909, be was going towards Canton, and bad just passed a little branch, and a freight train hove in sight coming from Canton; that be drove on, bis mare in a slow trot, kind of cantering along; be did not see anything to stop for, as tbe train bad just passed. He thought everything was clear, and when be got to' the railroad crossing Hall, tbe man in tbe buggy witb him, said, \u201cThere is another train coming up there,\u201d and plaintiff said, \u201cIt is that train down there,\u201d and Hall jumped out of tbe buggy right at tbe track and said, \u201cWhip up your mare, or you will be caught,\u201d and plaintiff turned bis bead and looked up tbe track and tbe train was about forty or sixty feet from him, coming backwards down tbe track, and be struck bis mare and tbe smoke and steam coming out scared tbe mare and she threw him against tbe sign post and injured him. Just before coming to tbe crossing where be was injured be saw a freight train go beyond tbe crossing 150 yards and stop, and this led him to. believe there was nothing else behind \u2014 be was pretty close to tbe railroad and did not burry \u2014 let bis mare go, did not burry her, but just as be got to tbe track tbe man that was in tbe buggy witb him (bad not quite got to tbe track, maybe sixteen or seventeen feet from it) said, \u201cI believe I bear another train.\u201d Plaintiff did not stop, and be jumped out of tbe buggy at tbe railroad, and wben be jumped out and said, \u201cWhip up your mare, or you\u2019ll get caugbt,\u201d plaintiff turned bis bead and saw tbe train was coming two or three rail lengths from him, and whipped bis mare, and just then tbe steam came out, causing tbe mare to shy to the left.\nBetween tbe little branch and tbe crossing is over 100 yards; it is 150 to the place; it would take two or three minutes to go from tbe little branch to tbe crossing; could walk it in two or three minutes or less time \u2014 \u201cit was just all right now.\u201d Plaintiff could see nothing till be got on tbe track; wben right at tbe railroad could not see 150 feet; could see about two or three rail lengths. No top on tbe buggy; it was open; no curtains. Tbe embankment at tbe crossing comes right down to it. Just before getting to tbe railroad, that bill makes off and makes a kind of bend.\nHall testified: \u201cWe crossed tbe branch, and after we crossed it, there was a freight train coming down from Canton, and 1 after coming on past us it stopped over tbe trestle, and we drove on to tbe next crossing, and there was a very high bank there that you can\u2019t see up the railroad any, arid just before we got to the crossing I thought I beard a train blow, and said, \u2018I believe there is a train coming,\u2019 and as I said that I put my hand on the side of the buggy and jumped, and when I turned my face his mare\u2019s foot was on the track and buggy very-close, and I hollered to him to whip the mare, and he crossed the track, and I saw he was going to hit the sign-post, and I saw him hit the sign-post and make a somersault. The distance from the little branch to the railroad crossing is 148 yards. I walked it in 1% minutes.\u201d\nThomas Wright testified that he was within 150 or 175 yards of plaintiff when the accident occurred; that he did not hear any bell ring or whistle blow; thought he could have heard.\nThere was.a judgment of nonsuit, from which the plaintiff appealed.\nJames II. Merrimon and Bourne, Parker & Morrison for plaintiff.\nMoore & Rollins and W. B. Rodman for defendant."
  },
  "file_name": "0325-01",
  "first_page_order": 361,
  "last_page_order": 366
}