Neal v. Booth

HEDRICK, Judge.

The sole issue raised by this appeal is whether the trial judge was correct in directing a verdict in favor of the defendants at the completion of plaintiff’s evidence. Plaintiff submits that the granting of the directed verdict was improper for two reasons: (1) plaintiff’s evidence establishes that defendants were negligent and that such negligence was the proximate cause of the collision; (2) plaintiff’s evidence does not establish that plaintiff was contributorily negligent as a matter of law.

In the case at bar plaintiff offered evidence that the electrical warning signals were not operating; that the operator of the train gave no warning by whistle, bell, or otherwise of the train’s approach; and that the plaintiff’s intestate’s view of the approaching train was obstructed just prior to the collision by the depot and by railroad cars on a service track in front of the railroad station. This evidence, when taken in the light most favorable to the plaintiff is sufficient prima facie to establish that defendants were negligent, and that their negligence was a proximate cause of the accident. Kinlaw v. R. R., 269 N.C. 110, 152 S.E. 2d 329 (1967). Therefore, the decision in the instant case turns upon the question of whether the evidence establishes plaintiff’s intestate’s contributory negligence as a matter of law.

It is a well-established rule that a railroad company is under a duty to give travelers “timely warning of the approach of its train to a public crossing, but its failure to do so doesn’t relieve a traveler of his duty to exercise due care for his own safety, and the failure of the traveler to exercise such care bars recovery when such failure is a proximate cause of the injury.” Price v. Railroad, 274 N.C. 32, 161 S.E. 2d 590 (1968). When the evidence proffered by plaintiff is considered in a light most favorable to him, it tends to show that at the time of the collision the plaintiff was traveling at a rate of 5 miles per hour and that his view was obstructed until he was 21 feet from the southernmost track (the track upon which the collision occurred). We are of the opinion that this evidence is sufficient to establish that plaintiff was contributorily negligent as a matter of law.

This conclusion finds support in two decisions of our Supreme Court which involved similar factual situations. In Carruthers v. R. R., 232 N.C. 183, 59 S.E. 2d 782 (1950), the court found contributory negligence as a matter of law on the part of a driver who was traveling at 10-15 miles per hour and had an unobstructed view of the approaching train for 24 feet 8 inches. In holding that plaintiff was contributorily negligent as a matter of law, the court stated:

“The conclusion is inescapable that he failed to look as he approached the crossing and drove on the track at a time when by looking he could have seen the train and avoided injury, [citations omitted] The plaintiff’s evidence points unmistakably to failure on the part of the intestate to exercise care for his own safety with fatal consequences.”

Furthermore, in Jeffries v. Powell and Branch v. Powell, 221 N.C. 415, 20 S.E. 2d 561 (1942), the driver was proceeding at a speed of 5-10 miles per hour and had an unimpeded view for 30-40 feet. The court in finding plaintiff’s negligence as the sole proximate cause of the accident commented that it was a matter of common knowledge that at the speed plaintiff was driving, he could have stopped the automobile almost instantly and avoided the collision.

Thus, the judgment directing a verdict for, the defendants is

Affirmed.

Judges Morris and Baley concur.