Smith v. Norfolk & Southern Railroad

58 S.E. 799, 145 N.C. 98, 1907 N.C. LEXIS 260

Opinion

CoNNoe, J\,

after stating the case: As, in our opinion, the defendant was entitled to judgment of nonsuit upon the mo-' tion made at the close of the testimony, it is unnecessary to discuss or pass upon the exceptions to the instructions given, and the refusal to give others requested by defendant. The action being prosecuted in the State courts for alleged negligence, the rules obtaining in courts of admiralty in such cases do not apply. The rights and liabilities of the parties are to he ascertained by resorting to the principles which control in actions for alleged negligence wherein contributory negligence is set up as a defense. Fuller, G. J., in Belden v. Chase, 150 U. S., 674, says: “At common law tbe general rule is, that if both vessels are culpable in respect of faults operating directly and immediately to- produce the collision, neither can recover damages so caused. In order to maintain his action, the plaintiff was obliged to establish the negligence of'the defendant, and that such negligence was the sole cause of the injury; or, in other words, he could not recover, though defendant was negligent, if it appeared that his own negligence directly contributed to the result complained of.” 25 Am. and Eng. Enc., 1025. The motion for judgment of nonsuit involved two propositions: Eirst. That there was no evidence of negligence on the part of the “Neuse.” Second. That if there was negligence the admitted contributory negligence on the part of the “Blanche” intervened and became the proximate cause of .the injury,'thus preventing a recovery. This is undoubtedly true, unless the plaintiff can maintain a third proposition: That defendant, having knowledge of plaintiff’s negligence, failed to use ordinary care to prevent the injury. Barrows on Neg., 35. “It is sometimes said to be the rule that a plaintiff may recover, notwithstanding the fact that his own negligence exposed him to the risk of injury, if the defendant, after-becoming aware of plaintiff’s danger, failed to use ordinary care to avoid injuring him.” Beach Cont. Neg., sec. 54. It being established that defendant was negligent— that is, guilty of a breach of duty — and that plaintiff was also negligent, the law fixed the liability upon the one whose negligence was the proximate cause of the injury. If fixed upon the defendant, it is because of his negligence and the absence of any intervening negligence on-the part of plaintiff contributing to the injury. Where the injury' is the result of a sequence of negligent acts or omissions, the rule is thus stated by Judge Cooley: “If the original wrong only becomes injurious in consequence of the intervention of some distinct wrongful act or omission of another, the injury shall be imputed to the last wrong as the proximate cause, and not to that wbicb was remote.” Cooley on Torts, 70, cited with approval in Clark v. Railroad, 109 N. C., 430; Pickett's case, 117 N. C., 616.

In Farmer v. Railroad, 88 N. C., 564, it is said: “Where an injury results from negligence, and the act of the plaintiff is directly connected and concurrent with that of the defendant, the plaintiff’s negligence is the proximate cause of the injury, and will bar his recovery in an action for damages; but, where the negligent act of the plaintiff precedes that of the defendant, it is the remote cause, and the defendant will be liable if the injury could have been avoided by the exercise of reasonable care.” These and other decisions holding this doctrine are based upon the case of Davies v. Mann, 10 M. & W. (Exch.), 546. In all of the cases the liability is put upon the party whose negligence is the proximate cause of the injury. Upon the undisputed evidence in this case, we think it very doubtful whether there is any evidence of negligence on the part of the officer of the “Neuse”; hut, passing that question, it is clear that the admitted negligence of the “Blanche” was last in order of sequence, and, as the learned counsel properly conceded, contributed to the injury. The answer to the second issue put an end to the controversy. The officer of the “Neuse,” introduced by plaintiff, says that before entering into the fog he blew fog signals and continued to do so until he saw the “Blanche”; that he was on the watch in the pilot house; that his course was north-northwest; that he heard the fog signals of the “Blanche”; that they were always on the port bow, clearly showing her position; that nothing occurred to indicate that she would change her course or her position, her course being south-southeast %; that she had plenty of room to pass, and that the first intimation he had of danger was when, fifty yards distant, he saw her across his course; that he immediately blew the proper signals, rang the bells, reversed his engine, backed his boat; that he did everything in his power to avoid the collision. Conceding that at the moment he saw the “Blanche” he was going faster than the rules allowed, is it not apparent that, but for the erratic course of the “Blanche,” he could and would have proceeded with perfect safety to both boats. The case comes clearly within the principle of Piclceti’s case and numerous other authorities. But the learned counsel for plaintiff calls attention to the rules established by Congress to prevent collisions : “Every vessel shall, in a fog, go at a moderate speed, having.careful regard to the existing circumstances and conditions.” He insists that the term “moderate speed” has been defined to be such a speed as will enable the boat to stop within a distance at which he could see another boat. In the Umbria, 166 U. S., 404, Judge Brown, after a very exhaustive discussion of the authorities on the subject, says: “The general consensus of opinion in this country is to the effect that a steamer is bound to use only such precaution as will enable her to stop in time to avoid a collision after the approaching vessel comes in sight, provided such approaching vessel is herself going at the moderate speed required by law.” In other words, the steamer should so reduce her speed when in a fog that steamers which are free from blame or negligence may not be injured. The learned Justice proceeds to say that, in a douse fog, this rule might require both vessels to come to a standstill. In a lighter fog it might authorize them to keep their engines in sufficient motion to preserve their steerage way; the true principle being that they must use due diligence, the standard of which, in the light of the rules, being measured by “existing circumstances and conditions.” The distinction between the measure of duty to avoid injury imposed upon a locomotive engineer passing a public crossing and running on the track where there is no such crossing, is pointed out by Smith, C. J., in Parker v. Railroad, 86 N. C., 221. In the former the public have an equal right with the train; the engineer must anticipate that persons will be using the crossing, and lower his speed so that he may have his engine under such control that he can stop before coming in contact with a person on the crossing. Persons using the crossing must, however, use ordinary care to avoid injury. This speed, in towns’, is usually fixed by ordinance, and in many cases its violation is declared to be, as matter of law, the proximate cause of the injury. It is unnecessary to discuss the distinction made in that class of cases and the one before us. There was nothing in the conditions by which the “Blanche” was surrounded to cause her to change her course. The undisputed evidence is that “she had plenty of room and water” to pass the “Neuse” in safety. Her officer elected to change the course, the effect of which change was to throw her across the course of the “Neuse” at a point which rendered it impossible to prevent collision. The “Neuse,” with a regular speed of twelve miles, was running at the shoal-water speed of eight miles. There is nothing in the evidence showing that her surroundings required any further reduction to prevent injury to a steamer herself free from negligence, or to indicate that the only steamer of whose presence in the river she had any notice was off her course until too late to prevent the injury. Whatever may have been said by this Court in regard to “continuing negligence,” the facts in this record do not come within the doctrine of any case wherein that expression is used. Measured by the well settled principles of the common law, we find no evidence upon which to base the third issue. We are of the opinion that, by a shorter route, the same result would have been reached by granting the motion for judgment of nonsuit. In refusing the motion there was error. Let this be certified to the Superior Court of Craven, to the end that judgment be entered dismissing the action.

Error.