Dowdy v. Southern Railway Co. , 237 N.C. 519 ( 1953 )

Pakkee, J.

Tbe plaintiffs’ assignments of errors Nos. 1 to 4, both inclusive, which relate to questions asked witnesses by plaintiffs’ counsel, objected to by tbe defendants, and not answered, have not been set out in the plaintiffs’ brief. They are deemed abandoned. Rule 28, Rules of Practice in the Supreme Court; Dillingham v. Kligerman, 235 N.C. 298, 69 S.E. 2d 500.

Tbe remaining assignments of errors Nos. 5 and 6 are founded on exceptions challenging tbe rulings of tbe court below in allowing tbe motions for judgments as of nonsuit against all tbe plaintiffs, and tbe judgments signed in accord therewith.

There is no allegation in tbe plaintiffs’ complaints or replies that tbe view of tbe railroad tracks was obstructed from tbe gate at tbe Gulf Plant to tbe railroad track, nor any evidence to that effect. Tbe tank car on tbe sidetrack is not mentioned in tbe plaintiffs’ pleadings. Tbe plaintiffs offered two witnesses, wbo testified as to tbe distance from tbe gate to tbe track. Dowdy said it was approximately 25 or 30 feet; Rhine said it was 47 feet and 9 inches by actual measurement from tbe outside of tbe rose bush at tbe gate to tbe railroad track. Tbe tank ear on tbe sidetrack was on tbe opposite side of Dowdy from tbe approaching train. Dowdy testified that after you get out of tbe gate good you can see up tbe track to tbe west, from which tbe train was coming, a distance of about 900 yards. Tbe track in that direction was straight. Tbe time was about 9 :35 a.m. Tbe weather, as admitted in tbe pleadings, was clear and fair. Dowdy knew of tbe railroad track; be bad crossed it twice a day, six days to the week, for three months. Dowdy drove bis tractor out of tbe gate without stopping onto tbe railroad crossing, a place of danger. He looked to tbe left; when be looked to tbe right bis tractor was upon tbe tracks, and be saw tbe approaching train 300 to 400 feet away.

Conceding tbe existence of negligence on tbe part of tbe defendants, which they strenuously deny, this case is controlled by tbe fact that Dowdy drove bis tractor and oil tanker upon tbe railroad crossing in tbe face of an on-coming train, which be could have seen in tbe exercise of ordinary care, if be bad looked to tbe right while be was traveling according to bis testimony 25 or 30 feet from tbe gate to tbe railroad crossing, or according to actual measurement taken by bis witness Rhine 47 feet and 9 inches. If Dowdy bad looked to bis right while traveling this distance, be could have seen tbe train and avoided injury. This negligence on Dowdy’s part contributed to tbe injury and damage of all the plaintiffs, and bars recovery, unless they can bring themselves within tbe doctrine of tbe last clear chance. Penland v. R. R., 228 N.C. 528, 46 S.E. 2d 303 (and cases cited); Carruthers v. R. R., 232 N.C. 183, 59 S.E. 2d 782 (unobstructed view 24 feet and 8 inches from east rail of track); Parker v. R. R., 232 N.C. 472, 61 S.E. 2d 370 (unobstructed view after be stopped 8 or 10 feet from east rail); Herndon v. R. R., 234 N.C. 9, 65 S.E. 2d 320 (unobstructed view 45 feet from railroad track); Stevens v. R. R., ante, 412, 75 S.E. 2d 232.

“A traveler has the right to expect timely warning, Norton v. R. R., 122 N.C. 910, 29 S.E. 886, but tbe failure to give such warning would not justify the traveler in relying upon such failure or in assuming that no train was approaching. It is still bis duty to keep a proper lookout.” Godwin v. BR. R., 220 N.C. 281, 17 S.E. 2d 137.

Justice Brogden in bis characteristic style aptly said: “There are two lines of decisions involving crossing accidents that run through tbe body of our law, as clearly marked and defined as tbe Gulf Stream that runs through the midst of the ocean.” Eller v. R. R., 200 N.C. 527, 157 S.E. 800. This case comes within the second class therein mentioned, where the plaintiffs took a chance and lost.

Dowdy was an employee of Burns, and at the time of the collision was acting within the scope of his employment. Dowdy’s negligence is in law attributable to Burns. Hampton v. Hawkins, 219 N.C. 205, 13 S.E. 2d 227; Rollinson v. Hicks, 233 N.C. 99, 63 S.E. 2d 190.

The Insurance Co. alleges in its joint complaint that it has paid to Burns for damage to its tractor and oil tanker $2,394.10, and is entitled to be subrogated to the rights of Burns to the extent of the amount paid. Sub-rogation is the substitution of one person in the place of another with reference to a lawful claim or right. Liles v. Rogers, 113 N.C. 197, 18 S.E. 104, 37, Am. St. Rep. 627. The party who is subrogated is regarded as entitled to the same rights, and, indeed, as constituting one and the same person whom he succeeds, Bank v. Bank, 158 N.C. 238 at 248, 73 S.E. 157; Grantham v. Nunn, 187 N.C. 394, 121 S.E. 662; Beam v. Wright, 224 N.C. 677, 32 S.E. 2d 213. A party can acquire no better right by subrogation than that of the principal. Parsons v. Leak, 204 N.C. 92, 167 S.E. 567. The Insurance Co. is regarded as constituting one person with Burns, and Dowdy’s contributory negligence is in law attributable to Burns.

The next question presented: Does the evidence considered in its most favorable light make out a case for the jury on the doctrine of last clear chance? The principles of the doctrine of last clear chance have been defined countless times by this and other courts and various text writers, since its origin in the famous hobbled ass case of Davies v. Mann, 10 M. & W. 546, decided by an English Court in 1842. This doctrine 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; Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E. 2d 337; Lee v. R. R., ante, 357, 75 S.E. 2d 143. Dowdy was guilty of such negligence in this case.

This doctrine has been clearly and succinctly stated in Ingram v. Smoky Mountain Stages, Inc., supra: “The contributory negligence of the plaintiff does not preclude a recovery where it is made to- appear that the defendant, by exercising reasonable care and prudence, might have avoided the injurious consequences to the plaintiff, notwithstanding plaintiff’s negligence; that is, that by the exercise of reasonable care defendant might have discovered the perilous position of the party injured or killed and have avoided the injury, but failed to do so.”

It is stated in Lee v. R. R., supra: “The last clear chance does not mean the last possible chance to avoid the accident — citing authorities. It means such chance or interval of time between the discovery of the peril of the injured party, or tbe time such peril should have been discovered in the exercise of due care, and the time of his injury as would have enabled a reasonably prudent person in like circumstances to have acted in time to have avoided the injury,” citing authorities.

The doctrine of last clear chance does not apply when the plaintiff is guilty of contributory negligence as a matter of law. Redmon v. R. R., supra; Sherlin v. R. R., 214 N.C. 222, 198 S.E. 640; Ingram v. Smoky Mountain Stages, Inc., supra.

Courts take judicial notice of subjects and facts of common and general knowledge. The law does not require us to be blind and deaf, and ignorant of facts of common and general knowledge to all men. Reid v. Coach Co., 215 N.C. 469, 2 S.E. 2d 578, 123 A.L.R. 140; Allen v. Bottling Co., 223 N.C. 118, 25 S.E. 2d 388 (common knowledge many of our improved roads 16 feet wide). In Davis v. R. R., 170 N.C. 582, 87 S.E. 745, this Court took judicial notice of the fact that the force of a rapidly passing train would be centrifugal from the side of the train and would cause one to fall outward, instead of creating a vortex which would carry him beneath the train.

We take judicial notice of a fact of such common and general knowledge that the engineer’s seat is on the right side of the locomotive and the fireman’s on the left.

Dowdy drove his tractor and oil tanker upon the railroad track in the face of an on-coming train. His view was unobstructed from the time he left the gate to his left and to his right. He looked to the left, when he looked to the right his tractor was upon the railroad tracks, and he saw the approaching train 300 to 400 feet away. He is the only witness to the speed of the train. He testified it was going about 12 or 15 miles an hour. At that time his tractor and oil tanker were moving forward. Dowdy further testified, at that time he threw it into reverse, and the tractor started backward and stalled on the track.

This Court said in Temple v. Hawkins, 220 N.C. 26, 16 S.E. 2d 400, speaking of a truck that stalled on a railroad crossing in the face of an on-approaching train: “The engineer had a right to assume up to the very moment of the collision, that the plaintiff could and would extricate himself from danger. The fact of the failure to give a signal from the engine could not militate against the defendants, since all that such signal could have availed the plaintiff would have been to give him notice of the approach of the train, and this notice the plaintiff already had, since he saw the train at a distance of 1,500 feet down the track moving or in the act of starting to move in the direction of the crossing he was taking.” In this case the plaintiff pleaded last clear chance.

A strikingly similar case is Bailey v. R. R., and King v. R. R., 223 N.C. 244, 25 S.E. 2d 833. The only eye witness of the collision, a witness for the plaintiff, testified: “I saw the train way on up the track about' 400 yards, and I saw the truck drive upon the track. The train looked to be about 400 yards up the track. I saw the truck drive up on the crossing and the train was still coming. The truck looked like it was trying to get off, kinder moved back and forth and settled down at the time the train hit it. After the train hit the truck it brought it way on down there the other side of me, took it on down there the other side of the switch.” Bailey and King were killed. The Court in affirming a judgment of nonsuit quotes the words quoted above from Temple v. Hawkins. In the Bailey and King cases the plaintiffs did not plead the last clear chance.

There is no evidence that the engineer knew, or by the exercise of due care, could have known, that Dowdy was helpless upon the track — if, indeed, Dowdy was helpless. The defendants had a right to assume up to the very moment of the collision that Dowdy could and would extricate himself from danger. This Court has so stated the law in two similar cases. Temple v. Hawkins, supra; Bailey v. R. R. and King v. R. R., supra.

"When the train was 300 to 400 feet away, according to Dowdy, the only eye witness to the collision who testified, his tractor was on the railroad tracks and going forward. When the tractor was going forward, it v?as not helpless or stalled on the crossing. Then Dowdy threw his tractor in reverse, and the tractor moved backwards and stalled on the crossing. How far was the train away then? The evidence does not show.

Dowdy drove on the railroad track from the side of the fireman. According to the plaintiffs' witness Rhine, Moore, the engineer, said at the scene of the collision: “He did not see the vehicle. Was warned by the fireman. As soon as warning of danger, applied brakes and reached for whistle cord but did not blow whistle; said the bell was ringing and stated he blew the whistle at main crossing of Old 601.” While the engineer on the opposite side of the train from Dowdy, did not see the tractor and oil tanker, his fireman did, and he applied the brakes. According to the plaintiffs’ evidence the train engine came to a stop the length of the engine and one and one-half car lengths further down the railroad, about 150 feet after the impact.

The plaintiffs offered no testimony as to how many cars were in the train, nor within what distance it could have been stopped at a speed of 12 or 15 miles an hour. Their evidence shows a prompt application of brakes when the fireman, who was on the left of the locomotive engine, gave the engineer warning. The plaintiffs have pleaded last clear chance, but their evidence considered in the light most favorable to the plaintiffs fails to show sufficient evidence for submission to a jury that the defendants by exercising reasonable care and prudence, might have avoided injurious consequences to the plaintiffs, notwithstanding the plaintiffs’ contributory negligence.

The judgments of nonsuit entered in the Superior Court as to all the plaintiffs are

Affirmed.