Brown v. Atlantic Coast Line Railroad

Campbell, J.

As Higgins, J., so appropriately stated in Faircloth v. R. R., 247 N.C. 190, 100 S.E. 2d 328, “[f]or reasons readily apparent, the Court has encountered difficulty in laying down hard and fast rules governing liability in train-automobile grade crossing accidents. '. . . [E]ach case must stand upon its own bottom, and be governed by the controlling facts there appearing.’ ... It is a matter of common knowledge that a train cannot leave the track. . . .”

In Cox v. Gallamore, 267 N.C. 537, 148 S.E. 2d 616, the Supreme Court stated that:

“. . . [T]he 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. 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.” (Citations omitted)

Therefore, where a driver knows about a railroad crossing, he has a duty to approach such crossing with care and at a speed which would permit him to stop the vehicle if necessary to avoid a collision with an oncoming train. However, a different rule applies where there is a blind crossing or where there is an unmarked crossing and the driver has no notice or knowledge of the crossing. As to the latter rule, see Kinlaw v. R. R., 269 N.C. 110, 152 S.E. 2d 329; Cox v. Gallamore, supra; Henderson v. Powell, 221 N.C. 239, 19 S.E. 2d 876; and Harper v. R. R., 211 N.C. 398, 190 S.E. 750.

In Hinnant v. R. R., 202 N.C. 489, 163 S.E. 555, the plaintiff was a passenger in an automobile which collided with a train at a blind crossing.

“The complaint [painted] the following picture: The driver of an automobile along a public road intersected by a railroad track, [arrived] at the crest of a hill 300 feet from the track. The hill [was] 22-% feet higher than the track. His vision to the left [was] obstructed by shrubbery growing upon the right of way. There [was] a crossing sign plainly visible, and telegraph poles along the tracks [gave] warning of the presence of a railroad. The road [was] wet and slippery. Notwithstanding, the driver [did] not slacken his speed or attempt to bring his car under control, but [drove] ahead at the rate of 25 or 30 miles an hour. A heavy freight train . . . [was] approaching the crossing, but [gave] no signal. When the driver . . . [reached] a point 69 feet from the track the freight train ‘burst into view at the crossing.’ . . . He attempted to stop the car, but he was operating it, under the circumstances, in such a manner that he could not control it, and thereupon he leaped from the car, leaving his passenger to his fate. The car [plunged] ahead and [struck] the train. . . .”

The Supreme Court in that case laid down the following four rules for determining whether or not the acts of the driver constituted the sole proximate cause of the passenger’s injury:

“. . . (1) The negligence of the driver must be such as to bar his recovery if he should sue for any injury sustained by him. [In other words, the driver must have been guilty of contributory negligence as a matter of law.] . . .

(2) The negligence of the driver must be palpable and gross. Herman v. R. R., 197 N.C., 718, 150 S.E., 361. In that case, Stacy, C.J., says: ‘. . . [T]he defendant [railroad] had a right to operate the train over its track, and the negligence of the driver of the automobile is so palpable and gross ... as to render [the driver’s] negligence the sole proximate cause of the injury.

(3) If the act of the driver is a new, independent, efficient and wrongful cause, intervening between the original wrongful act and the injury, then such act of such driver is deemed to be the proximate cause of the injury, upon the theory that the primary or original negligence was thereby insulated. . . .

(4) The new, independent, efficient intervening cause must begin to operate subsequent to the original act of negligence and continue to operate until the instant of injury.

Foreseeability is the test of whether the intervening act is such a new, independent and efficient cause as to insulate the original negligent act. That is to say, if the original wrongdoer could reasonably foresee the intervening act and resultant injury, then the sequence of events is not broken bj1' a new and independent cause, and in such event the original wrongdoer remains liable.” (Citations omitted)

Applying the doctrine of insulating negligence, the Supreme Court there held that the law did not impose upon the defendant’s engineer the duty of foreseeing the negligent conduct of the driver.

In Jones v. R. R., 235 N.C. 640, 70 S.E. 2d 669, the defendant railroad had permitted corn to be grown on its right-of-way, and this corn obstructed the view of drivers of oncoming automobiles. However, the driver of the automobile involved in the grade crossing collision with the train in that case “had crossed the tracks at [that] point many times, was familiar with the crossing and surrounding conditions, and knew that trains passed frequently.” On the afternoon in question, the driver came up to the railroad tracks and stopped. He then started forward and, as he drove onto the tracks, he did not look anymore. He testified that after driving onto the tracks the next thing he knew, he had been hit by a train. No signal by whistle or horn had been given by the approaching train. The Supreme Court stated:

“. . . [I] f it be conceded that the defendant was negligent in allowing the corn to grow upon 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, subsequently operating, was the real, efficient cause of the injury to the [passenger in the automobile]. It is manifest that the negligence of the husband in driving without looking through an area of some 27 to 30 feet in which his vision was unobstructed intervened and insulated the prior negligence of the defendant and became the sole proximate cause of the [passenger’s] injury.” To like effect, see Faircloth v. R. R., supra, and Godwin v. R. R., 220 N.C. 281, 17 S.E. 2d 137.

In Jeffries v. Powell, 221 N.C. 416, 20 S.E. 2d 561, an automobile passenger was killed in a grade crossing collision between a train and automobile. The Supreme Court pointed out that there was no evidence to show whether the train was operating at an unlawful or negligent rate of speed. It was then pointed out that even if the train was required to give a signal of its approach and failed to do so, it was nevertheless clear from the evidence that the negligence of the driver of the automobile was such as to insulate any negligence of the railroad and that the driver’s negligence was the sole proximate cause of the collision. It was held that the negligence of the driver was patent because he drove the automobile into a known zone of danger without looking. This negligence of the driver, which began to operate subsequent to any negligent act on the part of the railroad and which continued to operate until the time of impact, intervened between the defendant railroad’s failure to give a signal of approach and the passenger’s injury.

In the case at bar the driver of the truck was familiar with the railroad crossing. She knew that she could not see down the tracks until reaching the edge of Chatham Street and that she was driving at a speed which would not permit her to stop the truck upon reaching the edge of Chatham Street and before reaching the tracks. If it is conceded that the defendant was negligent in not blowing a horn or sounding a whistle, it is nevertheless clear that the driver’s negligence in trying to outrun the train by picking “up speed in an effort-to go around the front of the train” could not have been reasonably foreseen by the defendant. This was such an intervening act of negligence as to be deemed the sole proximate cause of the collision.

Affirmed.

Mallard, C.J., and Morris, J., concur.