Cummings v. Atlantic Coast Line Railroad

Winborne, J.

Appellant in challenging judgment below contends that the court erred for that the evidence when taken in the light most favorable to plaintiff is sufficient to justify and to require the submission of the case to the jury under the doctrine of last clear chance. ¥e are unable to agree that the challenge is well taken.

*131 No presumption of negligence on the part of the railroad arises from the mere fact that the mangled body of plaintiff’s intestate was found on or near the track.

Upton v. R. R., 128 N. C., 173 , 38 S. E., 736 ;

Clegg v. R. R., 132 N. C., 292 , 43 S. E., 836 ;

Harrison v. R. R., 204 N. C., 718 , 169 S. E., 637 .

The doctrine of last clear chance does not arise until it appears that the injured party has been guilty of contributory negligence.

Redmon v. R. R., 195 N. C., 764 , 143 S. E., 829 . When the doctrine is relied upon the burden is on the plaintiff to show by proper evidence:

(1) That at the time the injured party was struck by a train of defendant he was down, or in an apparently helpless condition on the track; (2) that the engineer saw, or, by the exercise of ordinary care in keeping a proper lookout could have seen the injured party in such condition in time to have stopped the train before striking him; and (3) that the engineer failed to exercise such care, as the proximate result of which the injury occurred.

Upton v. R. R., supra; Clegg v. R. R., supra; Henderson v. R. R., 159 N. C., 581 , 75 S. E., 1092 ;

Smith v. R. R., 162 N. C., 29 , 77 S. E., 966 ;

Davis v. R. R., 187 N. C., 147 , 120 S. E., 827 ;

George v. R. R., 215 N. C., 773 , 3 S. E. (2d), 286 .

The doctrine of last clear chance does not apply in cases where the trespasser or licensee upon the track of a railroad, at the time, is in apparent possession of his strength and faculties, the engineer of the train which produces the injury having no information to the contrary. Under such circumstances the engineer is not required to stop the train or to even slacken its speed, for the reason he may assume until the very moment of impact that such person will use his faculties for his own protection and leave the track in time to avoid injury.

Redmon v. R. R., supra; Rimmer v. R. R., 208 N. C., 198 , 179 S. E., 753 ;

Pharr v. R. R., 133 N. C., 610 , 45 S. E., 1021 ;

Reep v. R. R., 210 N. C., 285 , 186 S. E., 318 ;

Lemings v. R. R., 211 N. C., 499 , 191 S. E., 39 ;

Sherlin v. R. R., 214 N. C., 222 , 198 S. E., 640 .

There must be legal evidence of every material fact necessary to support the verdict, and such verdict “must be grounded on a reasonable certainty as to probabilities arising from a fair consideration of the evidence, and not a mere guess, or on possibilities.” 23 C. J., 51;

S. v. Johnson, 199 N. C., 429 , 154 S. E., 730 ;

Denny v. Snow, 199 N. C., 773 , 155 S. E., 874 ;

Shuford v. Scruggs, 201 N. C., 685 , 161 S. E., 315 ;

Allman v. R. R., 203 N. C., 660 , 166 S. E., 891 .

Tested by these principles the evidence offered leaves the instant case in the realm of speculation. While there is no evidence that a train passed the scene of the accident during the night in question, it may be inferred from the evidence as to the physical condition of the body and accompanying signs at the scene that the intestate was struck and killed *132 by a train. Yet these physical facts present no reasonable theory to the exclusion of many others as to the circumstances under which the accident occurred. In what position was intestate when struck? The evidence is consonant with any of many theories which may be advanced with equal force, but all of which are speculative and rest in mere conjecture. The probabilities arising from a fair consideration of such evidence afford no reasonable certainty on which to ground a verdict upon an issue of last clear chance.

This case is distinguishable from the case of George v. R. R., supra, and is not controlled by the decision therein.

It is contended by appellant that, if the evidence otherwise offered by plaintiff be insufficient to take the case to the jury on the question as to whether the intestate was lying on the track in a helpless or apparently helpless condition at the time he was struck, the extract from the answer of defendant, introduced in evidence by her, certainly places intestate on the track in such condition. However, reference thereto reveals words which may not be fairly and properly interpreted as an admission of a fact. Bather the words that he “lay down or placed himself upon the tracks” constitute an alternative expression. The clause, “placed himself upon the tracks,” may appropriately apply to any position, lying, sitting or standing upon the tracks. To become an admission the words used in the pleading must form an independent statement of fact. Whether they constitute such statement is a question of law for the court.

The judgment below is Affirmed.