Baker v. Atlantic Coast Line R. Co.

• Decision Date: 01 November 1933
• Docket Number: 264.
• Citation: 171 S.E. 342,205 N.C. 329
• Parties: BAKER et al. v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

171 S.E. 342

205 N.C. 329

BAKER et al. v. ATLANTIC COAST LINE R. CO.

No. 264.

Supreme Court of North Carolina

November 1, 1933

Appeal from Superior Court, Pitt County; Grady, Judge.

Actions by Minnie Baker, administratrix, and by Jacob C. Williams against the Atlantic Coast Line Railroad Company were consolidated and tried together. From an adverse judgment plaintiffs appeal.

Affirmed.

Negligence of automobile driver falling asleep and driving into center pier of railroad underpass held proximate cause of death of guest in car, precluding recovery against railroad.

Civil actions by owner and driver of automobile and administratrix of invited guest to recover damages (1) for injuries sustained by owner and driver, and (2) for death of invited guest, both alleged to have been caused by the wrongful act neglect, or default of the defendant, and, as the two causes of action arose out of the same collision or the same state of facts, for convenience, they were consolidated and tried together. Fleming v. Holleman, 190 N.C. 449, 130 S.E. 171.

The determinative facts are these: State highway No. 90 passes under the tracks of the defendant railroad just west of the town of Williamston, this state. In 1923, pursuant to plans approved by the state highway commission, the defendant reconstructed or rebuilt this underpass, or the trestle over the hard-surfaced road, and, in doing so, erected center piers, of 2 or 3 feet in width, for the support of its track or trestle, leaving a driveway on either side of 10 1/2 or 11 feet. The roadway is approximately 24 feet wide for a distance of about 96 feet before reaching the underpass. The center piers or posts are not lighted, though they are equipped with reflectors, placed upon them by the state highway commission.

On the night of August 4, 1929, about 12:30 a. m., the plaintiff, Jacob C. Williams, was driving his Ford automobile along said highway, with Heber C. Baker, an invited guest, sitting on the front seat with him. Just before reaching said underpass, Williams fell asleep and ran his automobile into the center column, injuring himself and his car and killing his guest. He testified that he "dozed off" or "fell asleep temporarily" at a point 200 or 300 feet from the underpass, and "when I last remember driving before I fell asleep, I was driving about 35 miles per hour." He further said that he saw the lights of Williamston before he "went to sleep, and was entirely familiar with the route." He could not say whether the deceased was asleep or saw him sleeping.

Upon these, the facts chiefly pertinent, the actions were dismissed as in cases of nonsuit, and, from the judgments entered, the plaintiffs appeal, assigning errors.

Julius Brown, of Greenville, for appellants.

Thomas W. Davis and V. E. Phelps, all of Wilmington, and MacLean & Rodman, of Washington, N. C., for appellee.

STACY Chief Justice.

That the driver of the automobile, who fell asleep and ran his car into the center post, injuring himself and killing his companion, cannot recover, is too plain for debate. Blood v. Adams, 269 Mass. 480, 169 N.E. 412; Potz v Williams, 113 Conn. 278, 155 A. 211. He was not driving along a street which abruptly terminated in a river without barricade or lights, as was the case in Willis v. City of New Bern, 191 N.C. 507, 132 S.E. 286. Nor was he unfamiliar with the road. There are none so blind as those who have eyes and will not see. Furst & Thomas v. Merritt, 190 N.C. 397, 130 S.E. 40. The law is not able to help him. Harrison v. R. Co., 194 N.C. 656, 140 S.E. 598.

It is equally clear, we think, that the negligence of the driver was the sole, proximate cause of plaintiff's intestate's death. Hinnant v. R. Co., 202 N.C. 489, 163 S.E. 555; Herman v. R. Co., 197 N.C. 718, 150 S.E. 361.

Such was the holding of the Louisiana Court of Appeal, Becker v. Ill. Cent. R. Co., 147 So. 378, 379, on a state of facts identical in principle with those of the present case, where Janvier, J., delivering the opinion of the court, took occasion to say:

"It must be conceded that, if there had been no center pier there could have been no collision therewith, but it does not follow that, because there was a pier, its presence can be said to have been the proximate cause of the collision. It might as well be said that, had the truck not been manufactured, it could not have run into the pier, and that therefore the manufacturers, because they made the truck, are chargeable with the accident.

"There must be overhead trestles, and there must be other obstructions near highways without which all such highways would, of course, be more safe. If all roads could be absolutely

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