The Charlotte Observer reports that a man was hit and killed by a freight train near uptown Charlotte around 6:40 p.m. last night. The man was walking along the tracks and did not get out of way of the train, even after the train sounded its warning horn and bell. The train applied its emergency brakes but could not stop before hitting the man. The man was pronounced dead on the scene. The accident is tragic, but it causes us to think about what are the duties of a railroad and a pedestrian with respect to each other.
When an injured party brings an action for negligence, he must show that (1) the defendant owed a duty to the plaintiff to exercise reasonable care, (2) the defendant breached that duty, (3) the plaintiff was injured, and (4) the defendant’s breach of the duty was both the actual and proximate cause of the plaintiff’s injuries. A defendant can sometimes raise the defense of contributory negligence because a plaintiff also has a duty to exercise reasonable care. In most states, a plaintiff’s comparative negligence can reduce his recovery of damages. However, North Carolina is one of a handful of states which follows the harsher rule of contributory negligence. Under the doctrine of contributory negligence, even if a defendant is negligent, a plaintiff’s contributory negligence can completely bar any recovery of damages.
Sometimes, a plaintiff who is contributorily negligent can use the doctrine of last clear chance to still recover damages. For example, a pedestrian crossing the street outside of a crosswalk would be contributorily negligent but if the motorist had the last clear chance to avoid the accident, the plaintiff might still recover damages for his injuries.
Typically, in a motor vehicle context, we begin our analysis by looking at the actions of the defendant to determine whether he is negligent, and then move on to look at the actions of the plaintiff to determine contributory negligence. However, railroad cases in North Carolina have historically followed a slightly different analysis. The North Carolina Supreme Court stated in the 1940 case Mercer v. Powell that
The decisions in this state have been very insistent upon the principle that a pedestrian voluntarily using a live railroad track as a walkway for his own convenience is required at all times to look and to listen, and to take note of dangers that naturally threaten and which such action on his part would have disclosed, and if in breach of this duty and by reason of it he fails to avoid a train moving along the track and is run upon and killed or injured, his default will be imputed to him for contributory negligence, and recovery is ordinarily barred.
A pedestrian who does not get out of the way of an approaching train is almost assumed to be contributorily negligent. Furthermore, because a pedestrian walking on railroad tracks is trespassing on the railroad’s property, the last clear chance doctrine is much more difficult to raise. The North Carolina Supreme Court explained in Lee v. Atlantic Coast Line Railroad Co. (1953) that
In order to recover of a railroad company for the death of a trespasser on its railroad track, under the application of last clear chance or discovered peril doctrine, the personal representative of the deceased trespasser must establish by competent evidence the following: (1) That the decedent was killed by the railroad company's train; (2) that the decedent at the time he was killed was down on the track in an apparently helpless condition; (3) that the engineer saw, or, by the exercise of ordinary care in keeping a proper lookout could have seen the decedent in time to have stopped the train before striking him; and (4) that the engineer failed to exercise such care, thereby proximately causing the death of the decedent.
The Court went on to conclude that
The doctrine of last clear chance does not apply where a trespasser or licensee is upon a railroad track, and is apparently in possession of his normal faculties, the engineer of the train producing the injury having no knowledge or information to the contrary. In such cases the engineer is under no duty to stop his train or to slacken its speed. He has the right to assume that such person will use his faculties for his own protection and get off the track in time to avoid injury.
Looking at last night’s accident, there are few facts to make out a case of negligence against the railroad company. The article notes that the train sounded its horn and warning bell and then applied the emergency brakes. It is not clear how far in advance the engineer might have seen the pedestrian on the tracks before sounded the horn and braking.
However, even if the railroad company was negligent, a pedestrian who is walking on the railroad tracks is under a duty to “look and to listen, and to take note of dangers that naturally threaten,” such as a train approaching on the tracks sounding its horn and bell. If he then fails to avoid the approaching train, he is contributorily negligent and barred from recovering damages. The last clear chance doctrine cannot be raised because a pedestrian walking on the tracks is not “in an apparently helpless condition.” Therefore, “the engineer is under no duty to stop his train or to slacken his speed” and “has the right to assume that such person will use his faculties for his own protection and get off the track in time to avoid injury.”
If you have been injured by a careless driver, contact an attorney at Rosensteel Fleishman, PLLC (704) 714-1450, to discuss your options.