Robinson v. Seaboard System R.R., Inc., 8710SC258

• Citation: 361 S.E.2d 909,87 N.C.App. 512
• Decision Date: 17 November 1987
• Docket Number: No. 8710SC258,8710SC258
• Court: Court of Appeal of North Carolina (US)
• Parties: Lyndell ROBINSON, Guardian of Clara Robinson Hutchins, and Timothy Allen Hutchins v. SEABOARD SYSTEM RAILROAD, INC., National Railroad Passenger Corporation, Archie Donald Brooks and Southern Railway Company.

Page 909

361 S.E.2d 909

87 N.C.App. 512

Lyndell ROBINSON, Guardian of Clara Robinson Hutchins, and Timothy Allen Hutchins v. SEABOARD SYSTEM RAILROAD, INC., National Railroad Passenger

Corporation, Archie Donald Brooks and Southern

Railway Company.

No. 8710SC258.

Court of Appeals of North Carolina.

Nov. 17, 1987.

Thorp, Fuller & Slifkin, P.A. by William L. Thorp and Anne R. Slifkin, Raleigh, for plaintiff-appellant Lyndell Robinson, Guardian of Clara Robinson Hutchins.

Thompson & McAllaster by Carolyn McAllaster, Durham, for plaintiff-appellant Timothy Allen Hutchins.

Hunton & Williams by Odes L. Stroupe, Jr. and Julius A. Rousseau, III, Raleigh, for defendant-appellant Southern Ry. Co.

Maupin, Taylor, Ellis & Adams, P.A. by John T. Williamson and John C. Millberg Raleigh, for defendant-appellee Seaboard System R.R., Inc.

MARTIN, Judge.

Southern Railway Company's Appeal

The primary question raised by the twenty-one assignments of error brought forward and argued in the appellant's brief filed by Southern is whether the evidence was sufficient to warrant submission of the issues of willful and wanton negligence and punitive damages to the jury. Although the question is a close one, we conclude that the issues were appropriately submitted. We have also reviewed carefully Southern's other contentions and find no prejudicial error.

Southern has assigned error to several of the trial court's evidentiary rulings. The first of these evidentiary assignments of error is directed to the admission of testimony by Correctional Officer Murray that from 1980 until the date of the accident, he had witnessed several incidents in which vehicles travelling from south to north over the "prison crossing" had nearly been struck by trains. Citing Martin v. Amusements of America, Inc., 38 N.C.App. 130, 247 S.E.2d 639, disc. rev. denied, 296 N.C. 106, 249 S.E.2d 804 (1978), Southern argues that plaintiffs failed to show that these "near misses" occurred under circumstances sufficiently similar to Mrs. Hutchins' accident to render the evidence relevant. In our view, however, the evidence was relevant, not to show that Mrs. Hutchins' accident occurred under circumstances similar to the "near misses," but as tending to prove the dangerous nature of the crossing and that Seaboard and Southern had notice of the hazard, especially in light of the increased public use of the crossing.

Southern also contends that the trial court erred in admitting the expert opinion testimony of C.O. Miller, who was permitted to testify as an expert witness in the field of "system safety." Southern argues that because Mr. Miller's experience had been primarily in the aviation and aerospace industries, rather than in the railroad industry, he was not qualified to express opinions with respect to the adequacy of Southern's safety program.

The trial judge is afforded broad discretion in determining whether to allow expert testimony; his decision will not be disturbed unless there is no evidence to support it. State v. Bullard, 312 N.C. 129, 322 S.E.2d 370, 45 A.L.R.4th 1147 (1984). "It is not necessary that an expert be experienced with the identical subject area in a particular case or that the expert be a specialist, licensed, or even engaged in a specific profession." Id. at 140, 322 S.E.2d at 376, 45 A.L.R.4th at 1158. In the present case, Mr. Miller's testimony revealed an extensive background of education and experience in the fields of safety and management which included, inter alia, teaching courses in safety management and system safety, employment as Director of the Bureau of Aviation Safety of the National Transportation Safety Board, and experience as a consultant in the field of system safety and safety management. He testified that the same principles of system safety applicable to those industries in which he had actual experience were also applicable to railroads. His education, knowledge, and experience in the field were clearly such as to enable him to assist the jury in understanding the evidence with respect to Southern's own safety rules and in relating that evidence to the accident in which Mrs. Hutchins was injured. See G.S. 8C-1, Rule 702. Moreover, the testimony given by Mr. Miller was within the scope of his expertise and Southern's contentions to the contrary are overruled.

Southern's next assignments of error are directed to the testimony of Ernest Mallard, whose responsibilities as an engineer employed by the North Carolina Department of Transportation include the signalization of railroad crossings. Mr. Mallard was permitted, over objection, to state his opinion that crossing gates would be the preferred manner of signalization of the "prison crossing." Southern contends that because the "prison crossing" was not a public crossing and had not been evaluated by the Department of Transportation, Mr. Mallard's testimony was speculative and irrelevant. We disagree. Mr. Mallard's testimony was relevant to the issue of whether or not Southern exercised due care with respect to the "prison crossing."

His opinion was given in response to a proper hypothetical question describing the crossing. He specifically qualified his opinion, stating, "if the Board of Transportation had ruled that signalization was required and it was my job to select [the] type of signalization required, I would select gates." Although Mr. Mallard testified as to the various factors considered by the Department of Transportation in determining the need for signalization of crossings, he did not state any opinion with respect to whether the "prison crossing" required signalization. We see no reasonable possibility that the jury could have been misled or confused by Mr. Mallard's testimony to Southern's prejudice and its assignments of error with respect thereto are overruled.

Southern next assigns error to certain testimony elicited from Dr. Robert Cunitz, a psychologist who was permitted to testify, without objection, as an expert witness in the field of human behavior. Southern contends that Dr. Cunitz's testimony exceeded the area of his expertise. Without repeating all of the testimony to which Southern objects, and mindful of the rule that the admissibility of expert testimony is within the sound discretion of the trial court, State v. Bullard, supra, we conclude that the opinions expressed by Dr. Cunitz were within his area of expertise and we find no abuse of discretion in the trial court's rulings with respect thereto. This assignment of error is overruled.

Contending that there was no evidence that Mrs. Hutchins was injured as a result of any willful and wanton negligence on its part, Southern assigns error to the denial of its motions for directed verdict and judgment notwithstanding the verdict with respect to the issues of willful and wanton negligence and punitive damages. In addition, Southern argues that because there was no evidence of willful and wanton negligence, Mrs. Hutchins is barred from recovery by her own contributory negligence.

It is well established that a party's contributory negligence will not preclude recovery for injuries proximately caused by another's willful and wanton negligence. Fry v. Southern Public Utilities Co., 183 N.C. 281, 111 S.E. 354 (1922). Moreover, punitive damages are properly recoverable where injury results from willful or wanton conduct. Hinson v. Dawson, 244 N.C. 23, 92 S.E.2d 393, 62 A.L.R.2d 806 (1956). The concept of willful and wanton negligence was explained by our Supreme Court in Foster v. Hyman, 197 N.C. 189, 191, 148 S.E. 36, 37-38 (1929):

An act is done wilfully when it is done purposely and deliberately in violation of law (citations omitted), or when it is done knowingly and of set purpose, or when the mere will has free play, without yielding to reason. (Citation omitted). "The true conception of wilful negligence involves a deliberate purpose not to discharge some duty necessary to the safety of the person or property of another, which duty the person owing it has assumed by contract, or which is imposed on the person by operation of law." (Citation omitted).

An act is wanton when it is done of wicked purpose, or when done needlessly, manifesting a reckless indifference to the rights of others. (Citations omitted). A breach of duty may be wanton and wilful while the act is yet negligent.... (Citation omitted).

In Wagoner v. North Carolina Railroad Co., 238 N.C. 162, 168, 77 S.E.2d 701, 706 (1953), the Court stated:

To constitute willful injury there must be actual knowledge, or that which the law deems to be the equivalent of actual knowledge, of the peril to be apprehended, coupled with a design, purpose, and intent to do wrong and inflict injury. A wanton act is one which is performed intentionally with a reckless indifference to injurious consequences probable to result therefrom. Ordinary negligence has as its basis that a person charged with negligent conduct should have known the probable consequences of his act. Wanton and willful negligence rests on the assumption that he knew the probable consequences, but was recklessly, wantonly, or intentionally indifferent to the results.

Applying these definitions to the present case, and viewing the evidence in the light most favorable to plaintiff, as is required upon a defendant's challenge to its sufficiency, we are unable to say that plaintiff cannot recover for Southern's willful and wanton negligence under "any reasonable reading of the facts as established by the evidence...." Taylor v. Walker, 320 N.C. 729, ----, 360 S.E.2d 796, 800 (1987). Thus, we hold that the issue of Southern's willful and wanton negligence and the issue of punitive damages were properly submitted to the jury.

In order to prove Southern's negligence, plaintiffs relied upon the theory that Southern, by leaving railroad cars standing in the storage and passing tracks in close proximity to the "prison crossing," had rendered the crossing...