Neal v. Booth , 287 N.C. 237 ( 1975 )

214 S.E.2d 36 (1975) 287 N.C. 237

Edna H. NEAL, Administratrix of the Estate of Jerry Augustus Neal
v.
N. C. BOOTH and Seaboard Coast Line Railroad Company.

No. 16.

Supreme Court of North Carolina.

May 6, 1975.

Mast, Tew & Nall, George B. Mast, Joseph T. Nall and W. R. Britt, Smithfield, for plaintiff appellant.

Maupin, Taylor & Ellis by Richard C. Titus, Raleigh, for defendant appellees.

SHARP, Chief Justice:

The Court of Appeals correctly held that plaintiff's evidence in this case is sufficient to establish prima facie that the negligence of defendants was a proximate cause of intestate's death. Thus, this appeal presents only the question whether the Court of Appeals erred in holding that plaintiff's evidence also established her intestate's contributory negligence as a matter of law. Defendant's motion for a directed verdict on the ground of intestate's contributory negligence cannot be sustained unless plaintiff's evidence, taken as true and interpreted in the light most favorable to plaintiff, so clearly shows intestate's negligence to have been a proximate cause of his death that it will support no other conclusion as a matter of law. Kelly v. Harvester Co., 278 N.C. 153, 179 S.E.2d 396 (1971); Perkins v. Cook, 272 N.C. 477, 158 S.E.2d 584 (1968).

Taking plaintiff's evidence as true and giving her the benefit of every favorable inference which can reasonably be drawn from it, the evidence is sufficient to permit (but not to compel) the following findings of fact:

On 15 November 1969 at 4:38 p. m., defendants' train No. 85 approached the much traveled, unguarded highway crossing in the town of Kenly from the east at a speed of 80 MPH without any signal from the train or the electrical warning device at the intersection. At that time plaintiff's intestate also approached the crossing after having stopped and turned left into the highway from an intersecting street 65 feet north of the crossing. As he drove slowly south he faced the afternoon sun, which was just to the right of the electrical warning signal. His view of the tracks to the east was obstructed by the Railroad's depot, automobiles parked adjacent thereto, and boxcars on the side track, the first of the three tracks at the crossing. Because of these obstructions intestate was unable to see the train approaching on the third track until he had crossed the side track. In the 21 feet between the two tracks he was unable to stop. The train struck the left side of his vehicle, killing him instantly.

At this stage of the proceeding defendants' version of how and why the accident occurred is not in the record. Only plaintiff's evidence has been heard, and certain opposing inferences are permissible from it. We, of course, express no opinion as to its veracity or weight. However, assuming the facts set out above, we hold that the evidence does not establish intestate's contributory negligence as a matter of law and that the directed verdict was erroneously entered. See Brown v. R. R. Co. and Phillips v. R. R. Co., 276 N.C. 398, 172 S.E.2d 502 (1970); Kinlaw v. R. R., 269 N.C. 110, 152 S.E.2d 329 (1967); Johnson v. R. R., 257 N.C. 712, 127 S.E.2d 521 (1962); Johnson v. R. R., 255 N.C. 386, 121 S.E.2d 580 (1961).

The cases cited above establish the following principles which are applicable to this case:

Testimony that a person nearby who could have heard and did not hear the sounding of a whistle or the ringing of a bell, or could have seen the flashing of lights and did not see them, is some evidence that no such signal was given. Kinlaw v. R. R., supra at 116, 152 S.E.2d at 333-334.

The train has the right of way at a public crossing, but it is the duty of the engineer to sound the customary warnings of the train's approach. A traveler on the highway has the right to expect timely warning, but the engineer's failure to give such warning will not justify an assumption that no train is approaching. Before going upon the track, and at a point where lookout will be effective, "a traveler must look and listen in both directions for approaching trains, if not prevented from doing so by the fault of the railroad company." He has the right to place some reliance upon an automatic crossing signal, especially if his view is obstructed. But the fact that an automatic warning signal is not working does not relieve the traveler of the duty to look and listen for approaching trains when, from a safe position, such looking and listening will suffice to warn him of danger. "Where there are obstructions to the view and the traveler is exposed to sudden peril, without fault on his part, and must make a quick decision, contributory negligence is for the jury." Johnson v. R. R., 255 N.C. at 388-389, 121 S.E.2d at 581-582.

"Mathematical possibilities and the results of exact measurements showing minimal space in which observations could be made, should not be controlling factors in determining whether nonsuit should be allowed as a matter of law." Johnson v. R. R., 257 N.C. at 716, 127 S.E.2d at 524.

The decision of the Court of Appeals is reversed, and the case is remanded with directions that it be returned to the Superior Court for a trial de novo.

Reversed.