Boyd v. Seaboard Air Line Railway Co.

156 S.E. 507, 200 N.C. 324, 1931 N.C. LEXIS 315

Opinion

BbogdeN, J.

Is a railroad company liable in damages for the negligent act of a third party who strikes a crossing flagman with an automobile and knocks him under a passing train?

The only theory upon which the plaintiff seeks to recover is that the lantern furnished by the defendant to the flagman was not a proper instrumentality in that it was an oil lantern and did not throw out sufficient light. This theory, however, is not supported by the evidence. The only eye witness to the killing saw the light and stopped. The red lantern is a sign of danger. Its size and source of illumination are not material if, in fact, the instrumentality actually gave reasonable warning of danger. The function performed by the appliance is more important upon the facts and circumstances of this case than mere mechanical construction. Moreover, it is manifest that the unfortunate death of plaintiff’s intestate was proximately caused and produced by the negligence and reckless act of a third party, and that such reckless and negligent act was in no wise related to, growing out of, or dependent upon any omission of duty upon the part of defendant. Even if there was evidence of negligence upon the part of defendant, the applicable principle of liability is stated in Craver v. Cotton Mills, 196 N. C., 330, 146 S. E., 570, in these words: “While there may be more than one proximate cause, that which is new and entirely independent breaks the sequence of events and insulates the original or primary negligence. This principle would apply if it should be granted that the defendant was negligent with respect to the light in the tower.” Indeed the ruling of the trial judge was in strict accordance with the principles of law announced in Lineberry v. R. R., 187 N. C., 786, 123 S. E., 1; Thompson v. R. R., 195 N. C., 663, 143 S. E., 186.

Affirmed.