Leggett v. Seaboard Air Line Railroad ( 1971 )

HEDRICK, Judge.

The plaintiffs contend that the court committed prejudicial error in instructing the jury that it is contributory negligence barring recovery for one to attempt to cross a railroad track without looking and listening when within the danger limits, and when such looking and listening would be effective.

“It does not suffice to say that plaintiff stopped, looked, and listened. His looking and listening must be timely, McCrimmon v. Powell, supra, so that his precaution will be effective. Godwin v. R. R., supra. It was his duty to ‘look attentively, up and down the track,’ in time to save himself, if opportunity to do so was available to him.” Parker v. R. R., 232 N.C. 472, 61 S.E. 2d 370 (1950) ; see also Arvin v. McClintock, 253 N.C. 679, 118 S.E. 2d 129 (1961), and cases cited therein.

There is evidence in the record from which the jury could find that from a point just east of the defendant’s main line track plaintiffs’ testate had an unobstructed view to the north of 750 feet, and there is also evidence in the record from which the jury could find that plaintiffs’ testate failed to stop, look, and listen before attempting to cross the main line track.

The plaintiffs next contend that the court denied “to the plaintiff appellants the benefit of the reasonable inference on all of the evidence that the plaintiff had stopped prior to placing herself in a position of peril.” There is no direct testimony in the record that plaintiffs’ testate stopped her automobile before driving upon the tracks. The plaintiffs insist that the inference arises from consideration of all of the evidence that she did stop. With respect to this evidence, the court, in its instructions to the jury, stated: “Defendants contend and say that all of the evidence, even the evidence from the plaintiff’s own witnesses, particularly of the person who operated the electric shop that she failed to stop. . . .” In challenging this portion of the instructions, the plaintiffs in their brief argue that “the Court incorrectly stated that the operator of the electric motor shop . . . had testified that Mrs. Wiggins failed to stop.” In the challenged portion of the instructions, it is clear that the court was not stating that Mrs. Wiggins did not stop, but was merely stating one of the contentions of the defendants, and when the charge is considered as a whole it is clear that the plaintiffs1 were given the benefit of every inference fairly deducible from the evidence that she did stop.

The plaintiffs’ third contention is that the trial court committed prejudicial error in failing to instruct the jury, as requested, that the defendant railroad had a duty to maintain a public crossing in a reasonably safe condition, and in failing to state that the conduct of Mrs. Wiggins “should be considered in light of the defendants’ negligent maintenance of an unusually hazardous crossing.” Since the jury found that the negligence of the defendants was one of the proximate causes of the collision, the plaintiffs could not have been prejudiced by any error committed by the court in its instructions as to the negligence of the defendants. Conference v. Miles and Conference v. Creech and Teasley v. Creech, 259 N.C. 1, 129 S.E. 2d 600 (1963). By the second part of this contention, the plaintiffs apparently are contending that the maintenance of an unusually hazardous crossing by the defendant railroad lessens the degree of care required by a motorist attempting to cross the tracks. The defendant railroad and Mrs. Wiggins were under a mutual and reciprocal duty to exercise due care to avoid the accident. Johnson v. R. R., 255 N.C. 386, 121 S.E. 2d 580 (1961) ; Moore v. R. R., 201 N.C. 26, 158 S.E. 556 (1931). While it is true that the maintenance of an unusually hazardous crossing by the defendant railroad places upon it a duty of care commensurate with the danger created, May v. R. R., 259 N.C. 43, 129 S.E. 2d 624 (1963), it is equally true that the duty of care owed by the motorist increases commensurately. Brown v. R. R., 171 N.C. 266, 88 S.E. 329 (1916). The assignments of error upon which these contentions are based are all without merit.

The plaintiffs have brought forward other assignments of error directed to the admission and exclusion of evidence, and to the court’s instructions to the jury. A careful examination of each exception in the record fails to reveal any prejudicial error.

No error.

Judges Campbell and Britt concur.