Heavener v. Railroad

141 N.C. 245

Opinion

Per Ouriam:

The principle embodied in the special prayer for instructions is in accord with the decision of this court in Stanly v. Railroad, 120 N. C., 514, and others of like import. These cases are decisive in favor of plaintiff’s right to recover on the facts presented in the record and the court holds there is no error.

In this charge the intestate was not relieved of all obligation to look and listen by reason of the defendant’s breach of duty, as in Cooper’s case, 140 N. C., 209, cited and relied upon by the defendant. On the contrary, the prayer for instructions assumes that the plaintiff was required to do both and rests the right to recover on the fact that the intestate was prevented from noting the approach of the train, by reason of the defendant’s failure to have a light or give any warning of its approach — this fact to be determined by the jury-

No Error.