Dickey v. Atlantic Coast Line Railroad ( 1929 )

ADAMS, J., concurs in dissenting opinion. Civil action to recover damages for an alleged negligent injury caused by a collision between an automobile in which plaintiff was riding as a guest, and the defendant's train standing across a street in the town of Parmelee in violation of an ordinance of said town.

The evidence tends to show that on the night of 10 March, 1924, plaintiff, as an invited guest, started on an automobile trip with one Frank Donnell, owner and driver of the car, from Robersonville to Greenville to attend a show. At Parmelee, while running about 20 or 25 miles per hour, Donnell ran into a freight train belonging to the defendant, which was standing across the street, and the plaintiff was severely injured. The plaintiff had no control or authority over the automobile, but was a mere invited guest or gratuitous passenger riding therein.

An ordinance of the town of Parmelee making it unlawful for any train or engine to stand on or block any of the street crossings in said town longer than ten minutes at a time, was offered in evidence.

J. L. Gurganus, who had stopped his automobile at the crossing in question, waiting for the train to pass, testified: "We had been there approximately eight or ten minutes when the car struck. I do not know how long the train had been across the crossing before we got there, but it was there when we got there. It was raining and cold. We sat there in the car approximately eight or ten minutes and a light approached the train from the opposite direction and we heard a slam. As we heard the slam, the lights went out."

At the close of plaintiff's evidence, judgment of nonsuit was entered on motion of defendant, from which the plaintiff appeals, assigning error. after stating the case: Under the principles announced in White v.Realty Co., 182 N.C. 536, 109 S.E. 564, Earwood v. R. R., 192 N.C. 27,133 S.E. 180, and Taylor v. Lumber Co., 173 N.C. 112, 91 S.E. 719 (on the question of proximate cause), we think the case should have been submitted to the jury.

The conclusion is entirely permissible and the fact readily inferable, viewing the evidence in its most favorable light for the plaintiff, that the defendant's train at the time of the collision was blocking the street in violation of the town ordinance of Parmelee which makes it unlawful for any train or engine to stand on or block any of the street crossings in said town longer than ten minutes at a time.

We have held in a number of cases that it is negligence on the part of defendant to fail to observe a positive safety requirement of the law.Albritton v. Hill, 190 N.C. 429, 130 S.E. 5; Taylor v. Stewart,172 N.C. 203, 90 S.E. 134. And where a failure of this kind is admitted or established, it is ordinarily a question for the jury to determine whether such negligence is the proximate cause of plaintiff's injury. Stultz v.Thomas, 182 N.C. 470, 109 S.E. 361. But, of course, if the negligence of the driver and his fault alone were the sole proximate cause of the injury, as distinguished from a proximate cause or one of the proximate causes, then there could be no recovery against the railroad. Earwood v. R.R., supra.

Weston v. R. R., 194 N.C. 210, 139 S.E. 237, is distinguishable, for there the suit was by the owner and driver of the car, while here the plaintiff, a mere invited guest with no authority or control over the car, and not its owner, brings the action. Ordinarily, the negligence of the driver, under such circumstances, is not imputable to the guest or passenger. Williams v. R. R., 187 N.C. 348, 121 S.E. 608 (concurring opinion); Bagwell v. R. R., 167 N.C. 611, 83 S.E. 814. But this principle may be subject to modification if it should appear that the occupants of the car were engaged in a joint enterprise. Pusey v. R. R.,181 N.C. 137, 106 S.E. 452.

Reversed.