Bingham v. Carolina Central Railroad

41 S.E. 807, 130 N.C. 623, 1902 N.C. LEXIS 123

• Court: Supreme Court of North Carolina
• Decided: June 10, 1902
• Status: Published

Opinion

Douglas, J.

(after stating the facts). We are always loth to set aside the verdict of a jury upon the ground that there is no evidence to sustain it, especially when the case has been so clearly and fairly presented in the charge of his Honor; but under all the circumstances of this case we are forced to such a conclusion. We see no substantial evidence and by that we mean evidence beyond a mere scintilla, tending to show negligence on the part of the defendant, whose demurrer to the evidence should, therefore, have been sustained. The velocipede car does not appear to have been in a defective condition, or to hare been constructed differently from those in common use. Tbe only act of negligence that could possibly be imputed to tbe defendant was tbe bare fact that tbe man on tbe velocipede was riding upon bis coat. It does not seem to us tbat an act so simple, and apparently devoid of any possible elements of danger’, can be evidence of negligence. Tbe falling of tbe coat sleeve and its becoming entangled in tbe gearing seems to have been one of those accidents constantly occurring in human affairs, tbat seem so simple after they happen, and yet so utterly improbable before they happen, as to be outside tbe range of human foresight. Pure accidents can not be eliminated by law. All tbat tbe la,w has done is to' say tbat the employer shall exercise reasonable care by himself and servants, to prevent accidents, and tbe Courts can bold him responsible only when be fails to exercise such care. Tbe employer is not responsible for an accident simply because it happens, but only when be has caused it directly or indirectly by some negligent act or omission of legal duty.

This Court has said in Brown v. Railway Co., 126 N. C., 458 : “In tbe light of subsequent events we may say tbat it was unfortunate tbat tbe defendant did not notify tbe engineer of tbe presence of No. 64; but we must not forget tbe old .and homely proverb tbat ‘our hindsights' are always better than our foresights.’ ” In tbe case at bar we may repeat tbat in tbe light of subsequent events it was unfortunate tbat the man on tbe velocipede did not take better care of bis coat, and equally so tbat tbe plaintiff did not remain at a safer distance behind tbe velocipede. Either precaution would have avoided tbe accident, and yet neither' seemed necessary to tbe respective parties under tbe peculiar conditions in which they were placed.

Error.