Seawell v. Raleigh & Augusta Railroad

106 N.C. 272

• Court: Supreme Court of North Carolina
• Decided: February 15, 1890
• Status: Published

Opinion

Davis, J.:

We think his Honor erred in charging the jury “that, in this case, if the traiu was run faster than schedule time, and was running at the time at so rapid a rate that it could not be controlled or stopped within the distance when the object was discovered, it would have been negligence.” The defendant can be held to no such rigid rule of accountability as this. According to the only testimony upon the question the engineer whs permitted to run thirty miles an hour. He was running 'twenty or twenty-five miles an hour, and if, as soon as he saw, or with proper care might have seen, the animal on the track, he did everything that could be safely and reasonably done to avoid the accident, it would be a full defence to plaintiff’s claim to damages. Winston v. Railroad, 90 N. C., 66, and cases there cited. If the facts testified to by the engineer be accepted by the jury as true, there was no negligence on the part of defendant. ,

There was error, and the defendant is.entitled to a new trial.

Error.