Bailey v. North Carolina R. Co.

• Decision Date: 02 June 1943
• Docket Number: 740.
• Parties: BAILEY v. NORTH CAROLINA R. CO. KING v. SAME.
• Court: North Carolina Supreme Court

25 S.E.2d 833

223 N.C. 244

BAILEY v. NORTH CAROLINA R. CO.

KING v. SAME.

No. 740.

Supreme Court of North Carolina

June 2, 1943

Two civil actions to recover damages for the wrongful deaths of intestates alleged to have been caused by the negligence of the defendant, consolidated for trial by consent.

The record discloses that about 10 o'clock on the morning of December 20, 1940, the plaintiffs' intestates were riding in a Chevrolet truck, in the City of Durham, and attempted to cross the railroad track of the defendant where it intersects Crabtree Street; that at the crossing of Crabtree Street and the railroad track the engine of the westbound passenger train of the defendant struck the truck in which the intestates were riding, killing both of them; the record does not disclose which of the intestates was driving, but does disclose that they were engaged in a joint enterprise of selling produce for a third party, and were accustomed to permit first one and then the other to drive, depending upon which one it was more convenient to do the driving.

The railroad track ran in the general direction of east and west and Crabtree Street ran in the general direction of north and south. The Chevrolet truck was being driven southward on Crabtree Street and the engine of the defendant's passenger train was being driven westward on the railroad tracks of the defendant when the collision occurred.

The evidence further discloses that a person driving southward on Crabtree Street as he approached the railroad track of the defendant had a clear unobstructed view east (to his left) down the said railroad track; that the plaintiffs drove the Chevrolet truck in which they were riding upon said railroad track, where it stalled, and while so stalled the engine of the defendant struck it, killing the intestates.

When the plaintiffs had introduced their evidence and rested their cases, the defendant lodged motions to dismiss the actions and for judgment as in case of nonsuit (C.S. § 567), which motions were allowed, and from judgment predicated upon such ruling the plaintiffs appealed assigning errors.

Fuller Reade, Umstead & Fuller, Brawley & Brawley, and B Ray Olive, all of Durham, for plaintiffs-appellants.

W.T. Joyner, Spears & Hall, and H. E. Powers, all of Raleigh, for defendant-appellee.

SCHENCK Justice.

Having reached the conclusion we have in this case it may be conceded, though it is not decided, that the defendant was negligent in not giving warning of the approach of its train by bell or whistle, in exceeding the speed limit fixed by municipal ordinance and in allowing the railroad bed at the crossing to become rough by reason of the rails being exposed from two and a half to three inches in height and of holes therein.

The evidence shows that Mulberry Street runs east and west parallel to and immediately north of the railroad track, on the railroad right-of-way, and that a person traveling south on Crabtree Street enters Mulberry Street and proceeds some 40 or 50 feet before crossing the railroad track, and from the entrance into Mulberry Street to the crossing of the railroad track such person has an unobstructed view of the railroad track east of the Crabtree Street crossing,--at the entrance to Mulberry Street a clear view of 250 feet down the track, and close to the track, just before entrance thereupon, an unobstructed view of the track east for "several hundred yards." James Charles Smith, the only eyewitness of the collision introduced as a witness by the plaintiffs, was standing about 25 yards south of the railroad track and about 35 yards west of the crossing, testified: "I saw the train way on up the track about 400 yards, and I saw the truck drive upon the track. The train looked to be about 400 yards up the track. I saw the truck drive up on the crossing and the train was still coming. The truck looked like it was trying to get off, kinder moved back and forth and settled down at the time the train hit it. After the train hit the truck it brought it way on down there the other side of me, took it on down there the other side of the switch. I was looking at the truck the instant it was hit."

It is manifest from the evidence of the plaintiffs that if their intestates had looked east down the railroad track they could have seen the train for a considerable distance from any point after entering Mulberry Street and reaching the crossing of Crabtree Street and the railroad track. It is inescapable that the driver of the truck proceeded to drive the truck upon the track, a known zone of danger, without stopping to avoid a collision with a train approaching from the east.

The law applicable to this case is stated in the well-considered opinion of the present Chief Justice in Godwin v. Atlantic Coast Line R. Co., 220 N.C. 281, 17 S.E.2d 137, 139, as follows:

"It is the prevailing and permissible rule of practice to enter judgment of nonsuit in a negligence case, when it appears from the evidence offered on behalf of the plaintiff that his own negligence was the proximate cause of the injury or one of them. Battle v. Cleave [& Rodgers], 179 N.C. 112, 101 S.E. 555; Wright v. Southern R. Co., supra, [155 N.C. 325, 71 S.E. 306]; Beck v. Hooks, 218 N.C. 105 10 S.E.2d 608. The plaintiff thus proves himself out of court. Horne v. Atlantic Coast Line R. Co., 170 N.C. 645, 87 S.E. 523, Ann.Cas.1918A, 1171. It need not appear that his negligence was the sole proximate cause of the injury as this would exclude any idea of negligence on the part of the defendant. Absher v. Raleigh, 211 N.C. 567, ...