Beaman v. Southern Railway Co. , 238 N.C. 418 ( 1953 )

78 S.E.2d 182 (1953) 238 N.C. 418

BEAMAN
v.
SOUTHERN RY. CO. et al.

No. 170.

Supreme Court of North Carolina.

October 21, 1953.

Paul J. Story, Marion, and Edwin S. Hartshorn, Asheville, for plaintiff appellant.

W. T. Joyner, Raleigh, and Proctor & Dameron, Marion, for defendant appellees.

BARNHILL, Justice.

That the testimony offered by plaintiff, considered in the light most favorable to him, discloses negligence on the part of defendant may be conceded. If the judgment of nonsuit is to be sustained, it must be sustained for the reason plaintiff was guilty of contributory negligence as a matter of law.

On this phase of the case we must admit that this appeal presents a close question. It is a borderline case in which the presumption the trial judge ruled correctly must be considered in determining whether the appellant has shown prejudicial error.

"Every decision of a competent court must be deemed to be according to the law and the truth of the case until the contrary is shown." Gaston, J., Wade v. Dick, 36 N.C. 313.

On an appeal, error will not be presumed. Hayes v. Lancaster, 200 N.C. 293, 156 S.E. 530; Cole v. Atlantic Coast Line R. R., 211 N.C. 591, 191 S.E. 353; Phillips & Buttorff Manufacturing Co. v. Call, 211 N.C. 730, 192 S.E. 105. Instead, "the ruling of the court below in the consideration of an appeal therefrom is presumed to be correct." Hogsed v. Pearlman, 213 N.C. 240, 195 S.E. 789, 791; Warren v. Virginia-Carolina Joint Stock Land Bank, 214 N.C. 206, 198 S.E. 624.

The burden is on the appellant, Cole v. Atlantic Coast Line R. R., supra, Gold v. Kiker, 218 N.C. 204, 10 S.E.2d 650, Gibson v. Dudley, 233 N.C. 255, 63 S.E.2d 630. He must show error, Phillips & Buttorff Manufacturing Co. v. Call, supra, White v. Price, 237 N.C. 347, 75 S.E.2d 244, McCune v. Rhodes-Rhyne Manufacturing Co., 217 N.C. 351, 8 S.E.2d 219, Freeman v. Preddy, 237 N.C. 734, 76 S.E.2d 159, and "he must make it appear plainly * * *." Scott v. Swift & Co., 214 N.C. 580, 200 S.E. 21; Quelch v. Futch, 175 N.C. 694, 94 S.E. 713. (For other cases relating to the burden on appeal, see 2 N.C. Digest, Appeal and Error.)

Here the plaintiff was thoroughly familiar with the crossing and the surrounding area. He knew that the tracks to his left curved in a southerly direction. He saw the trees and bushes along the track almost daily. He knew it was a dangerous crossing. It was a clear day and the windows to his automobile were open. He looked to the right and then to the left and there was nothing that he could see coming from the west. He then looked forward and proceeded to cross the track. When he traveled only from 7 to 9 feet and his right wheel was across the first rail, he saw a train to his left, from 125 to 175 feet from the crossing. Why did he not see the train almost directly in front of him before it had traveled from 125 to 175 feet beyond all obstructions? Was it for the reason he looked once and then looked no more as his evidence seems to indicate?

He was asked: "At the time you stopped and looked you did not look any more until you got your wheels on the track, did you look to the left or west any more?" To this he replied: "I looked to the left and then I looked forward because you had to look where your car was going."

"Q. You looked straight ahead? A. Yes."

In explaining why he did not see the train until it was within about 125 feet of him when he could have seen it along the north rail for 300 or 325 feet, he testified: "I got the right front wheel across the south rail of that track which took some little time from where I was stopped back here."

The record is not such as to permit us to say that the court below was in error in concluding that if plaintiff had looked slightly to his left as he put his vehicle in motion, he would have seen the approaching train in ample time to avoid the collision. Instead, his evidence supports the conclusion that he looked once and then looked no more. The distance the train had traveled between the time he looked and the time he actually saw it indicates strongly that it must have been in full view before he actually reached the zone of danger, and, as he was traveling at a speed of only 3 or 4 miles per hour, he could have stopped instantly. It would seem, therefore, that the line of decisions represented by Parker v. Atlantic Coast Line R. R., 232 N.C. 472, 61 S.E.2d 370, and the cases there cited, is controlling.

As stated by Stacy, C. J., in Gold v. Kiker, supra [218 N.C. 204, 10 S.E.2d 652]:

"It may be conceded that the record is such as to leave the matter in doubt. This alone would seem to defeat the assignment of error on appeal, as the party alleging error has the laboring oar and must overcome the presumption against him. * * Verdicts and judgments are not to be disturbed except upon a showing of prejudicial error, i. e., error which amounts to the denial of some substantial right. (Cases cited.)"

As the conclusion plaintiff has failed to overcome the presumption against him prevails, the judgment entered must be

Affirmed.

WINBORNE, J., took no part in the consideration or decision of this case.

DEVIN, Justice (dissenting).

I am unable to agree with the majority opinion in this case. The testimony of the plaintiff does not, in my opinion, afford evidence of contributory negligence sufficient to justify a compulsory nonsuit. The well-established rule in this jurisdiction is that the defendant's motion for judgment of nonsuit on the ground of contributory negligence may be allowed only when "the plaintiffs' evidence establishes such negligence so clearly that no other conclusion may be reasonably drawn therefrom". Edwards v. Vaughn, 238 N.C. 89, 76 S.E.2d 359, 362, and cases cited.

I think the plaintiff was entitled to have his case submitted to the jury.

JOHNSON, J., concurs in dissent.