Sherlin v. Southern Railway Co.

198 S.E. 640, 214 N.C. 222, 1938 N.C. LEXIS 307

• Court: Supreme Court of North Carolina
• Decided: September 28, 1938
• Status: Published

Opinion

Per Curiam.

Conceding, but not deciding, that there is evidence of negligence on the part of the defendant, all the evidence leads to the conclusion that tbe intestate was guilty of contributory negligence as a matter of law under the well settled decisions of this Court. In such case the doctrine of last clear chance does not apply. Redmon v. R. R., 195 N. C., 764, 143 S. E., 829; Rives v. R. R., 203 N. C., 227, 165 S. E., 709; Rimmer v. R. R., 208 N. C., 198, 179 S. E., 753; Stover v. R. R., 208 N. C., 495, 181 S. E., 345; Reep v. R. R., 210 N. C., 285, 186 S. E., 318; Lemings v. R. R., 211 N. C., 499, 191 S. E., 39.

All the evidence shows that the intestate stepped upon the trestle when the train was approaching and undertook to run across before the train reached there, and failed. The evidence shows that the trestle was not of the open type in the reported cases, but it was floored and surfaced with chats. Outside the ends of the crossties there was sufficient space for a person to walk or stand there in safety as the train passed.

But, on this record there is not sufficient evidence to justify the submission of an issue of last clear chance. It appears that the intestate was in the apparent possession of his faculties, and there was nothing to put the engineer on notice of any impairment in his hearing, or that he would not step off the track to an existent place of safety before the train hit him. The engineer had the right to assume up to the last moment that he would get off the track, and protect himself.

The judgment below is

Affirmed.