Osborne v. Norfolk & Western Railway Co.

Supreme Court of North Carolina

Osborne v. Norfolk & Western Railway Co.

63 S.E.2d 147, 233 N.C. 215, 1951 N.C. LEXIS 553

Supreme Court of North Carolina·Decided February 2, 1951·No. 743·Published·Cited by 5 cases

Opinion

EnviN, J.

Inasmuch as he entered upon the railroad track of the defendant without license, invitation, or other right, the intestate occupied the status of a trespasser at the time of his fatal injury. 44 Am. Jur., Railroads, section 424; 52 C.J., Railroads, section 2105. Under the evidence, he was clearly guilty of contributory negligence which will preclude his administrator from recovering damages from the defendant for his death unless the facts warrant the application of the last clear chance or discovered peril doctrine. Long v. R. R., 222 N.C. 523, 23 S.E. 2d 849.

When recovery is sought of a railroad company for the death of a trespasser on its railroad track under the doctrine of last clear chance or discovered peril, the personal representative of the deceased trespasser must offer evidence sufficient to establish these four elements:

1. That the decedent was killed by the railroad company’s train.

2. That at the time of his fatal injury, the decedent was down or in an apparently helpless condition on the railroad track.

*218 3. That tbe operatives of tbe railroad company’s train either actually saw, or by tbe exercise of ordinary care in keeping a proper lookout could bave seen, tbe decedent in sucb condition on tbe railroad track in time to bave enabled them, by tbe exercise of ordinary care, to stop tbe train and avoid tbe killing.

4. That tbe operatives of tbe railroad company’s train failed to exercise sucb care, and thereby proximately caused tbe death of tbe decedent. Battle v. R. R., 223 N.C. 395, 26 S.E. 2d 859; Long v. R. R., supra; Justice v. R. R., 219 N.C. 273, 13 S.E. 2d 553; Mercer v. Powell, 218 N.C. 642, 12 S.E. 2d 227; Cummings v. R. R., 217 N.C. 127, 6 S.E. 2d 837; Draper v. R. R., 161 N.C. 307, 77 S.E. 231; Henderson v. R. R., 159 N.C. 581, 75 S.E. 1092; Clegg v. R. R., 132 N.C. 292, 43 S.E. 836; Upton v. R. R., 128 N.C. 173, 38 S.E. 736.

When tbe testimony presented by tbe plaintiff in tbe court below is appraised at its full probative value, it is insufficient in law and logic to establish tbe second, third, and fourth elements set out above. As a consequence, tbe plaintiff is not entitled to invoke tbe last clear chance or tbe discovered peril doctrine, and tbe compulsory judgment of nonsuit must be

Affirmed.

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EnviN, J.

Inasmuch as he entered upon the railroad track of the defendant without license, invitation, or other right, the intestate occupied the status of a trespasser at the time of his fatal injury. 44 Am. Jur., Railroads, section 424; 52 C.J., Railroads, section 2105. Under the evidence, he was clearly guilty of contributory negligence which will preclude his administrator from recovering damages from the defendant for his death unless the facts warrant the application of the last clear chance or discovered peril doctrine. Long v. R. R., 222 N.C. 523, 23 S.E. 2d 849.

When recovery is sought of a railroad company for the death of a trespasser on its railroad track under the doctrine of last clear chance or discovered peril, the personal representative of the deceased trespasser must offer evidence sufficient to establish these four elements:

1. That the decedent was killed by the railroad company’s train.

2. That at the time of his fatal injury, the decedent was down or in an apparently helpless condition on the railroad track.

*218 3. That tbe operatives of tbe railroad company’s train either actually saw, or by tbe exercise of ordinary care in keeping a proper lookout could bave seen, tbe decedent in sucb condition on tbe railroad track in time to bave enabled them, by tbe exercise of ordinary care, to stop tbe train and avoid tbe killing.

4. That tbe operatives of tbe railroad company’s train failed to exercise sucb care, and thereby proximately caused tbe death of tbe decedent. Battle v. R. R., 223 N.C. 395, 26 S.E. 2d 859; Long v. R. R., supra; Justice v. R. R., 219 N.C. 273, 13 S.E. 2d 553; Mercer v. Powell, 218 N.C. 642, 12 S.E. 2d 227; Cummings v. R. R., 217 N.C. 127, 6 S.E. 2d 837; Draper v. R. R., 161 N.C. 307, 77 S.E. 231; Henderson v. R. R., 159 N.C. 581, 75 S.E. 1092; Clegg v. R. R., 132 N.C. 292, 43 S.E. 836; Upton v. R. R., 128 N.C. 173, 38 S.E. 736.

When tbe testimony presented by tbe plaintiff in tbe court below is appraised at its full probative value, it is insufficient in law and logic to establish tbe second, third, and fourth elements set out above. As a consequence, tbe plaintiff is not entitled to invoke tbe last clear chance or tbe discovered peril doctrine, and tbe compulsory judgment of nonsuit must be

Affirmed.

Osborne v. Norfolk & Western Railway Co., 63 S.E.2d 147, 233 N.C. 215, 1951 N.C. LEXIS 553 (N.C. 1951).

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