Faircloth Ex Rel. Faircloth v. Atlantic Coast Line Railroad , 247 N.C. 190 ( 1957 )

100 S.E.2d 328 (1957) 247 N.C. 190

Amelia FAIRCLOTH, by her Next Friend, Mrs. Chellie Faircloth,
v.
ATLANTIC COAST LINE RAILROAD COMPANY.
Martha Jo Anne FAIRCLOTH, by her Next Friend, Mrs. Chellie Faircloth,
v.
ATLANTIC COAST LINE RAILROAD COMPANY.

No. 174.

Supreme Court of North Carolina.

November 20, 1957.

Roscoe Maurice Holland, Roseboro, Hubbard & Jones, by Howard H. Hubbard, Clinton, for plaintiffs, appellants.

Poisson, Campbell & Marshall, Wilmington, for defendant, appellee.

HIGGINS, Justice.

For reasons readily apparent, the Court has encountered difficulty in laying down hard and fast rules governing liability in train-automobile grade crossing accidents. "Many cases involving injuries due to collision between motor vehicles and trains at grade crossings have found their way to this court. No good can be obtained from attempting to analyze the close distinctions drawn in the decisions of these cases, for, as was said in Cole v. Koonce, supra, [214 N.C. 188, 198 S.E. 637,] each case must stand upon its own bottom, and be governed by the controlling facts there appearing." Hampton v. Hawkins, 219 N. C. 205, 13 S.E.2d 227, 229.

It is a matter of common knowledge that a train cannot leave the track; that it cannot be stopped quickly; how quickly depends upon the grade, the speed, and the weight. A 24-car freight train moving 50-55 miles per hour would undoubtedly travel a considerable distance after the application of brakes before it could be stopped.

The plaintiffs in their very excellent brief, however, argue the evidence is sufficient to go to the jury by reason of the defendant's negligent failure (1) to keep a proper lookout; (2) to give timely warning; and (3) to operate at a safe speed. There is no evidence here the train was violating any speed law or regulation. A plaintiffs' witness testified that sparks were flying from the wheels as the train ran through the crossing, indicating the brakes had been applied. There was no evidence the engineer failed to look or to see what he should have seen, or to do all in his power to stop the train or to slow it down as soon as he was able to see the automobile entering a zone of danger. There is neither allegation nor proof the train did not display proper lights.

Somewhat more troublesome is the factual question whether the evidence is sufficient to show the defendant gave timely warning signals of its approach to the crossing. Three women drinking coffee in an apartment with two other adults and five children neither heard a whistle blow nor a bell ring. Two bedrooms separated them from the track. A warehouse was a part of the building between them and the direction from which the train approached. Another apartment in the same building was to the east. The record is silent as to how far down the track the witnesses could have heard the signals if given. The evidence they were not heard is negative in character.

If it be conceded the warning signals were not given, nevertheless, from the skid marks it is plainly indicated the driver knew of the danger in time to leave skid marks 35 feet south of the crossing. From a point more than 96 feet south of the crossing the driver of the pickup was in a position to see the lights from the locomotive for more than 2,000 feet. Gross negligence, continuing to the moment the truck crashed into the train, is shown on the part of the driver.

If it be conceded the members of the train crew did not ring the bell and did not blow the whistle, they could not foresee that a driver, fully able to observe the headlights of the approaching train for nearly half a mile, would rely solely on his hearing and not use his sight to ascertain the train's approach. The purpose of warning signals is to show the approach of the train. "The test by which the negligent conduct of one is to be insulated as a matter of law by the independent negligent act of another is reasonable unforeseeability." Hayes v. City of Wilmington, 243 N.C. 525, 91 S.E.2d 673, 685. "* * * if it be conceded that defendants were required to give a signal of the approach of its train at the crossing in question, and failed to do so, it is clear from the evidence that the negligence of Branch (the driver) * * * was the sole proximate cause of the collision between his automobile and the train." Jeffries v. Powell, 221 N.C. 415, 20 S.E.2d 561, 564. "The evidence offered by plaintiffs * * * fails to make out a case sufficient for consideration by the jury. It may be fairly doubted that plaintiffs show any evidence of negligence on the part of defendants. But on the other hand, the evidence clearly shows the negligence on the part of the operator of the truck here involved was the sole proximate cause of the collision, and comes within the principles applied in the case of Johnson v. Southern R. Co., 214 N.C. 484, 199 S.E. 704; and Jeffries v. Powell, 221 N.C. 415, 20 S.E.2d 561, and cases there cited." Hensley v. Southern R. Co., 230 N.C. 617, 54 S.E.2d 926.

"* * * if it be conceded that the defendant was negligent in allowing the corn to grow up on the edge of its right-of-way and in failing to give warning signal of the approach of its train to the crossing, nevertheless, it is clear that the active negligence of the driver of the automobile * * * was the real, efficient cause of the injury to the plaintiff. It is manifest that the negligence of the husband * * * became the sole proximate cause of the plaintiff's injury." Jones v. Atlantic Coast Line R. Co., 235 N.C. 640, 70 S.E.2d 669, 670.

Somewhat divergent views have been expressed by this Court, notably in Henderson v. Powell, 221 N.C. 239, 19 S.E.2d 876; Butner v. Atlantic & Y. R. Co., 199 N.C. 695, 155 S.E. 601; James v. Atlantic & East Carolina R. Co., 236 N.C. 290, 72 S.E.2d 682. "Insulated" and "intervening" negligence have been discussed frequently in the decided cases. Decision in this case is determined by the application of the law of proximate cause, which makes unnecessary any discussion of insulated or intervening negligence.

The nonsuits entered in the court below were in accordance with established authorities, and the judgment is

Affirmed.