Cox v. Gallamore ( 1966 )

148 S.E.2d 616 (1966) 267 N.C. 537

Larue B. COX, Administrator of the Estate of Janet Gail Cox, Deceased,
v.
Lloyd D. GALLAMORE, Jr., and Norfolk Southern Railway Company.

No. 30.

Supreme Court of North Carolina.

June 16, 1966.

J. W. Clontz, High Point, and Wilton F. Walker, Currituck, for plaintiff appellant.

J. Kenyon Wilson, Jr., and John H. Hall, Elizabeth City, for defendant Railroad, appellee.

Leroy, Wells & Shaw, Elizabeth City, for defendant Gallamore, appellee.

LAKE, Justice.

In passing upon the motion for judgment of nonsuit, the evidence of the plaintiff must be taken as true and must be interpreted in the light most favorable to the plaintiff. All reasonable inferences favorable to him must be drawn therefrom. Contradictions or inconsistencies, if any, in his evidence must be resolved in his favor.

The judgment of nonsuit could be affirmed on the ground of contributory negligence by the plaintiff's intestate only if his own evidence, so considered, leads inescapably to the conclusion that she was negligent and thereby contributed to her own injuries. There being no such evidence in the record before us, the judgment cannot be sustained on that ground.

G.S. § 136-20, which empowers the State Highway Commission, under certain circumstances, to require a railroad company to install gates, alarm signals or other safety devices at a crossing, does not relieve the railroad from its common law duty to give users of a highway adequate warning of the existence of a grade crossing at which the Commission has not required such devices to be installed. State Highway Commission v. Clinchfield R. R., 260 N.C. 274, 132 S.E.2d 595.

A railroad crossing is, in itself, a warning of danger to a driver who knows of it or who, by keeping a reasonable lookout as he drives along a highway, could discover its existence in time to stop his vehicle before entering the path of a train proceeding over the crossing. Ramey v. Southern R. R. Co., 262 N.C. 230, 136 S.E.2d 638; Stevens v. Southern R. R. Co., 237 N.C. 412, 75 S.E.2d 232. On the other hand, one driving upon a highway is not required to assume that he will come upon an unknown, unmarked railroad crossing at grade level which is not discoverable by keeping a reasonable lookout in the direction of his travel. It is the duty of the railroad to give to users of the highway warning, appropriate to the location and circumstances, that a railroad crossing lies ahead. Davidson v. Seaboard Air Line R. R. Co., 170 N.C. 281, 87 S.E. 35; Stephenson v. Grand Trunk Western R. Co., 110 F.2d 401, 132 A.L.R. 455; 75 C.J.S. Railroads § 768b; 44 Am.Jur., Railroads, § 558; Annot., 40 A.L.R. 1309. In 44 Am.Jur., Railroads, § 528, it is said:

"A traveler's ignorance of the existence of a railroad crossing does not impose any additional duty on a railroad company in the operation of its trains, but the company may, by its omission of some duties, subject itself to a liability for injury to one ignorant of a crossing, where it would not be liable if he knew thereof. One of these is the duty to give appropriate warning to persons using the highway of the presence of railroad crossings. The manner in which this duty shall be discharged varies according to the circumstances and surroundings, and ordinarily it is a question for the jury whether the duty in a particular case has been sufficiently performed. This is usually done by means of sign boards at or near the crossing indicating the presence of the crossing, and these are frequently required by statute."

Even though the railroad has posted signs which are adequate to give a traveler upon the highway notice of the presence of a railroad crossing, it is also the duty of the railroad to give timely warning of the approach of its train to the crossing by the blowing of the whistle or horn, by ringing the bell or by some other device reasonably calculated to attract the attention of those approaching the crossing upon the highway. Johnson v. Southern R. R. Co., 255 N.C. 386, 121 S.E.2d 580, 90 A.L.R. 2d 344; Irby v. Southern R. R. Co., 246 N.C. 384, 98 S.E.2d 349, 70 A.L.R. 2d 1; Caldwell v. Southern R. R. Co., 218 N.C. 63, 10 S.E.2d 680; Moseley v. Atlantic Coast Line R. R. Co., 197 N.C. 628, 150 S.E. 184; Hill v. Norfolk Southern R. R. Co., 195 N.C. 605, 143 S.E. 129; Blum v. Southern R. R. Co., 187 N.C. 640, 122 S.E. 562; Johnson v. Seaboard Air Line R. R. Co., 163 N.C. 431, 79 S.E. 690; Hinkle v. Richmond & D. R. R., 109 N.C. 472, 13 S.E. 884.

In the Hinkle case, Avery, J., speaking for the Court, said:

"In the absence of statutes regulating the time and manner of giving signals, the failure of an engineer in charge of a locomotive to ring the bell or sound the whistle on approaching the crossing of a public highway * * * is evidence of negligence to be submitted to the jury. [Citations omitted.]

"It is negligence per se * * * to omit to give, in reasonable time, some signal from a train moving * * * when it is hidden from the view of travelers, who may be approaching and in danger of coming in collision with it, by the cars of the company left standing on its track, or by an embankment, a cut, or a sharp curve in its line, or by any other obstruction allowed to be placed or placed in any way by the company. [Citations omitted.]

"Where a railroad company has erected a whistle post at a proper distance from a crossing in order to notify engineers when to give timely warning of the approach of a train to persons using the intersecting highway, and the purpose of the company is known to the public, so that persons generally are led to act on the supposition that a signal will be given at the post, it is also negligence on the part of the company, if the engineer fail to sound the whistle at the point so indicated, in passing with a freight or passenger train in his charge."

Where the railroad knows, or should know, that there are not adequate signs warning travelers upon the highway that they are approaching a crossing and knows, or should know, that the view of an approaching train from the highway approach to crossing is obstructed, the duty to give reasonable and timely warning of the approach of its train to the crossing is the same whether the building which obstructs the traveler's view was erected by the railroad or by some other person. The failure of the railroad to give reasonable and timely warning of the approach of its train to such a crossing is negligence.

On the other hand, the driver of an automobile, who knows, or, by the exercise of a reasonable lookout in the direction of his travel, should know, that he is approaching a railroad crossing, may not proceed to and upon it without looking in both directions along the track merely because he has heard no signal of an approaching train. The driver, who knows, or should know, that he is approaching a crossing at which his view of the track is obstructed, owes to the passengers in his vehicle the duty to reduce his speed so that he can stop the vehicle, if necessary, in order to avoid a collision with an approaching train. Johnson v. Southern R. R. Co., 255 N.C. 386, 121 S.E.2d 580; Henderson v. Powell, 221 N.C. 239, 19 S.E.2d 876. The train has the right of way at the crossing and it is the duty of the driver of the automobile who sees, or should see, the approaching train in time to stop, to do so. Coltrain v. Atlantic Coast Line R. R. Co., 216 N.C. 263, 4 S.E.2d 853; Johnson v. Seaboard Air Line R. R. Co., 163 N.C. 431, 79 S.E. 690.

In Henderson v. Powell, supra, suit was brought against a receiver operating a railroad for the wrongful death of a passenger in an automobile struck by a train at a crossing. It was held that the negligence of the driver of the automobile in driving onto the crossing was not an unforeseeable, intervening cause which insulated the negligent failure of the railroad to give a signal of the approach of the train. Speaking for the Court, Seawell, J., said:

"No negligence is `insulated' so long as it plays a substantial and proximate part in the injury. Restatement of the Law, Torts, sec. 447. `In order to relieve the defendant of responsibility for the event, the intervening cause must be a superseding cause. It is a superseding cause if it so entirely supersedes the operation of the defendant's negligence that it alone, without his negligence contributing thereto in the slightest degree, produces the injury.' Shearman & Redfield on Negligence (1941), vol. 1, p. 101, sec. 38 * *

"The negligence imputed to the defendants [the railroad] by the evidence is the operation of the train at an unlawful rate of speed, over an unprotected street crossing in a populous town, without signals or warning of its approach. Assuming this to be true, it was active negligence down to the moment of impact on the McCrimmon car, and proximately effective at that time, at least inferably so. Similarly, the McCrimmon car was in movement disregarding precautions and prudent operation when struck. The omitted acts were all relative to these movements. The default was concurrent."

The plaintiff offered testimony from which the jury could find that the Railroad gave no signal, by whistle or otherwise, that the train was approaching the crossing. Whether this evidence is true and whether, if true, it is sufficient to show that no such signal was given, are questions for the jury. There is evidence that the train came into Gallamore's view when the automobile was 175 feet from the crossing and traveling at a speed of 40 miles per hour. Whether this allowed sufficient time for a driver using reasonable care under the circumstances to bring the car to a stop before striking the train is a question for the jury. Whether Gallamore, by keeping a reasonable lookout in the direction of his travel, should have discovered the existence of the crossing before the train, itself, came into view and thus, before the train came in view, should have reduced the speed of the automobile so that he could have stopped it in safety after the approach of the train became known to him, is also a question for the jury.

Taking the evidence of the plaintiff as true and viewing it in the light most favorable to him, it is sufficient to support a finding of negligence by either or both of the defendants and that the negligence of each was a proximate cause of the collision and the death of the plaintiff's intestate. We, of course, express no opinion as to whether this evidence, or any portion thereof, is true or as to what inferences should be drawn therefrom. The evidence introduced at a further trial of this action may be different in some material particular. We hold only that the evidence in the record now before us, if true, is sufficient to support a finding that the proximate cause of the death of the plaintiff's intestate was negligent conduct on the part of either or both of the defendants and the judgment of nonsuit was error as to each of them.

Reversed.

MOORE, J., not sitting.