Stevens v. Southern Railway Co.

75 S.E.2d 232 (1953) 237 N.C. 412

STEVENS
v.
SOUTHERN RY. CO. et al.

No. 245.

Supreme Court of North Carolina.

March 25, 1953.

J. Faison Thomson & Son, N. W. Outlaw, Goldsboro, for plaintiff appellant.

Taylor & Allen, Lindsay C. Warren, Jr., Goldsboro, and W. T. Joyner, Raleigh, for defendant Southern Ry. Co. appellee.

WINBORNE, Justice.

The pivotal question before this Court challenges the ruling of the trial court in granting motion for judgment as of nonsuit at the close of plaintiff's evidence. If it be conceded that there is sufficient evidence to take the case to the jury on the issue as to negligence of defendant, in any of the respects alleged, the evidence indicates clearly and inescapably that plaintiff was negligent and that his negligence was at least a contributing cause of any injury and damage he may have sustained when the automotive truck operated by him ran into the side of defendant's train as it passed over the intersection of the road on which plaintiff was proceeding and the railroad tracks of defendant.

The plaintiff thus proves himself out of court. His negligence need not be the sole proximate cause of the injury. It is enough if it contribute to the injury. See Bailey v. North Carolina R. Co., 223 N. C. 244, 25 S.E.2d 833, and cases cited.

In this connection, decisions of this Court uniformly hold that "A railroad crossing is itself a notice of danger, and all persons approaching it are bound to exercise care and prudence, and, when the conditions are such that a diligent use of the senses would have avoided the injury, a failure to use them constitutes contributory negligence and will be so declared by the court", as stated by Brown, J., in Coleman v. Atlantic Coast Line R. Co., 153 N.C. 322, 69 S.E. 251, 252. See also Godwin v. Atlantic Coast Line R. R., 220 N.C. 281, 17 S.E.2d 137, 140.

And in the Godwin case, supra, Stacy, C. J., wrote: "We have said that a traveler has the right to expect timely warning * * * but the failure to give such warning would not justify the traveler in relying upon such failure or in assuming that no train was approaching. It is still his duty to keep a proper lookout * * *." See cases cited.

But the plaintiff in the case in hand says and contends that he did not know there was a railroad crossing at the place of collision in question. In this connection, we find in Blashfield's Cyc. of Automobile Law and Practice, Vol. 3, p. 214, Sec. 1814, this clear statement of the applicable principle of law in such cases: "The mere fact, however, that the driver is unfamiliar with the locality generally or does not know by recollection, as distinguished from observation, the character of the neighborhood, does not authorize him to drive heedlessly in disregard of the possible presence of crossings and then claim the benefit of the protection given those who are ignorant of the presence of a crossing. If, as he proceeds, his senses furnish him with sufficient information to apprise him of the existence of a crossing, he, although theretofore unconscious of its existence, is under the same duties in approaching it as any traveler who is independently acquainted with its existence.

"Moreover, he is not relieved from the responsibility of exercising his senses and avoiding a collision with a train thereon by reason of his ignorance of the train's existence, if its presence is made to appear by such indications and signs of there being a crossing near at hand as to make it obvious to any one reasonably using his ordinary powers of observation. It is no excuse that his attention is so occupied in the operation of his automobile as to withdraw his attention from the unmistakable signs of a railroad crossing open and apparent to any driver in his situation who is watching the road ahead."

Among the cases cited in support of the above text are: The case of Gelbin v. N. Y., N.H. & H.R. Co., 62 F.2d 500, 502, in which Manton, J., of Circuit Court of Appeals, Second Circuit, declared: "If the decedent was advised of the existence of the crossing as he proceeded, the degree of care imposed upon him was that of a wayfarer who did know of the crossing."

And the case of Piscitello v. New York, N.H. & H.R. Co., 116 Conn. 638, 166 A. 61, 62, which is strikingly similar in factual situation to case in hand. There Avery, J., speaking for the-Supreme Court of Errors of Connecticut, after relating the facts, had this to say: "A traveler on a highway, approaching a railroad crossing, is not relieved from the responsibility of exercising his senses and avoiding collision with a train thereon by reason of his ignorance of the existence of such a crossing if the presence of the railroad is obvious to any one reasonably using ordinary powers of observation", citing several cases from Connecticut and other States.

These principles are applicable to facts of case in hand. When so applied it is patent that as plaintiff proceeded along the by-pass or truck lane, that is, the highway, he was required to see and hear what a reasonably prudent person would see and hear under the circumstances.

His evidence discloses that: It was a fair day. The highway from a point approximately 200 feet north of the intersection was nearly straight. Within that distance there was nothing to obstruct the view of the intersection, or of an engine the front of which had reached the eastern edge of the intersection. The tee-irons in the track in the intersection could be seen 40 to 50 feet away. On both sides of the highway the railroad could be seen for a distance of 100 feet. There were coal cars on the south track east of, and within 7 to 10 feet of the eastern side of the intersection. From a point 90 feet north of the intersection there was nothing to obstruct plaintiff's view or to keep him from seeing an engine or train from the east, within 120 feet of the intersection. From points nearer the intersection visibility to the east was greater. When plaintiff first saw the engine, the front of it was in the center of the intersection. It was 8 feet away, and his truck ran into the engine after the front of it was 20 feet west of the intersection. And the point of impact was 30 to 40 feet back of the front of engine. Under these circumstances portrayed by plaintiff's evidence it is patent that he was not exercising due care under the circumstances. And it is so held.

Authorities cited by plaintiff have been given due consideration, and are not in conflict with this ruling.

Other assignments of error have been given due consideration, and in them prejudicial error is not made to appear.

Affirmed.