Smith v. Norfolk & Southern Railroad

Citations

• 114 N.C. 728

Syllabus

<p>Action for Damages — Injury Resulting in Death — Railroads— Duty of Engineer to Keep Lookout — Person on Track— Drunkenness — Negligence — Contributory Negligence — Proximate Cause of Injury.</p> <p>1. It is the duty of a railroad company in running its trains to keep a lookout on its track in order to discover and avoid any obstructions that may be encountered thereon, and if by reasonable watchfulness on the part of the engineer he might discover a person on the track in a perilous position and apparently insensible to danger, in time to avoid injury, and the engineer fails to keep such lookout and l>v reason thereof injury results, the railroad company is guilty of negligence for which an action may be maintained, provided that the person injured has not.been guilty of contributory negligence.</p> <p>2. In the absence of imminent danger the mere going upon the track is not contributory negligence but it is the duty of a person to look and listen for the approach of the train, and if, by his failure to exercise such care, a collision occurs he will be deemed guilty of such contributory negligence as would bar an action for the injury.</p> <p>8. It is an elementary principle that intoxication will never excuse one for a failure to exercise the measure of ordinary care and prudence which is due from a sober man under the same circumstances; a person cannot thus voluntarily incapacitate himself from ability to exercise ordinary care and then set up such incapacity as an excuse for his negligence; therefore, where the breach of duty on the part of the defendant consisted simply in a failure to discover' an intoxicated person lying on its track in time to avert injury, the negligence of such person continues, as in the case of a sober man, .up to the moment of the collision, is concurrent with, if not indeed subsequent to, that of the defendant, and thus, being a proximate cause of the accident, constitutes contributory negligence which bars a recovery. It would be