Bennett Ex Rel. Bennett v. Southern Railway Co. , 233 N.C. 212 ( 1951 )

63 S.E.2d 181 (1951) 233 N.C. 212

BENNETT
v.
SOUTHERN RY. CO.

No. 745.

Supreme Court of North Carolina.

February 2, 1951.

Jno. D. Slawter and Joe W. Johnson, Winston-Salem, for plaintiff.

Womble, Carlyle, Martin & Sandridge, Winston-Salem, for defendant.

DENNY, Justice.

We think, if it be conceded the defendant was negligent in the operation of its engine, the plaintiff failed to use reasonable care for his own safety, and thereby contributed to his injury. Coleman v. Atlantic Coast Line R. Co., 153 N.C. 322, 69 S.E. 251, 252; Bailey v. Black Mountain R. Co., 196 N.C. 515, 146 S.E. 135; Tart v. Southern R. Co., 202 N.C. 52, 161 S.E. 720; Rimmer v. Southern R. Co., 208 N.C. 198, 179 S.E. 753; Bullock v. Norfolk & W. R. Co., 212 N.C. 760, 194 S.E. 468.

"A railroad crossing is itself a notice of danger, and all persons approaching it are bound to exercise care and prudence, and, when the conditions are such that a diligent use of the senses would have avoided the injury, a failure to use them constitutes contributory negligence and will be so declared by the court." Coleman v. Atlantic Coast Line R. Co., supra.

And while the plaintiff testified it was dark and he did not see any signs of a train, did not hear a bell or whistle, or see a light, he further testified that when he was about to cross the crossing, the cars were cranking up there and flashing on their lights, and the lights blinded him. He also testified he never saw the engine until after it hit him, but "I could see up the sidewalk to the West on Second Street when I was lying on the ground. * * * I could see South on Patterson."

The shifting engine came from the South and if the plaintiff could see to the South on Patterson Avenue after he was hit, and while lying on the ground, it is difficult to understand why he could not see in that direction before he attempted to cross the sidetrack, if he looked, unless he was, as he testified, blinded by the lights from automobiles at the time he attempted to cross the defendant's sidetrack. Lee v. Southern R. Co., 180 N.C. 413, 105 S.E. 15.

In the last cited case, the plaintiff admitted he left a place of safety and walked a distance of some eight feet on to the southbound main line track, while he was enveloped in smoke from a northbound train, where he was hit by a southbound train. The court held the plaintiff was guilty of contributory negligence on his own evidence.

In the instant case it is well to note the plaintiff never testified he could not see the approaching engine. He simply stated he did not see it. And his witnesses who were at the scene of the accident testified with respect to light as follows: "There was a lot of light there. * * * There was plenty of light around there. * * * I don't know where the light was coming from, but there was plenty of light to see a person. I could see that it was a boy that was hit. * * * I could see the engine from half way up the block." Furthermore, all the testimony with respect to warnings and the headlight on the defendant's engine and the street light, was in the negative. The witnesses simply testified they did not remember seeing a headlight, or hearing a bell or a whistle, or whether or not the street light was burning. However, there is positive evidence from the plaintiff that he was blinded by lights from automobiles when he was "about to cross the crossing", but he testified that after he was hit he could see down Patterson Avenue, which was the direction from which the engine came. Herman v. Atlantic Coast Line R. Co., 197 N.C. 718, 150 S.E. 361. From the facts and circumstances disclosed by plaintiff's evidence, we think the judgment as of nonsuit should be upheld.

Affirmed.