McIlhaney v. Southern Railway Co.

Citations

• 30 S.E. 127
• 122 N.C. 995
• 1898 N.C. LEXIS 383

Syllabus

<p>Petition to Rehear — Action for Damages — Railroads— Injury to Person on 'Track — Continuing Negligence— Contributory Negligence..</p> <p>1. While, at a time or in a place of increased risk of accident to a person rightfully on a railroad track, there is required of him an increased degree of care to avoid an accident, there is required of the railroad a proportionately greater degree of care in managing its train at such time and place than at others.</p> <p>2. Where, in the trial of an action for damages for injuries caused by the alleged negligence of defendant railroad company, it appeared that, a street in Charlotte was entirely occupied by the tracks of the defendant and of the Seaboard Air Line, the spaces between which were frequently used by pedestrians ; and that, on a dark night and for his own convenience, the plaintiff was walking on one of the Seaboard tracks, and, seeing an engine just in front of him, he stepped on the defendant’s track and was struck by a train moving backwards on the track, and although he saw the train he could not tell -whether it was moving or not, as he saw no signal lights on the train and heard no ringing of a signal bell, Held, that it was not error to refuse an instruction that, if the jury believed plaintiff would have heen safe, if, after stepping from the Seaboard track, he had stepped in the space between it and defendant’s track, he was guilty of contributory negligence by getting upon defendant’s track. (Overruling former decision in same case, 120 N. 0., 551.)</p> <p>Haircloth, C. J., and Clark, J., dissenting.</p>