Barber v. Southern Ry. Co.

• Decision Date: 11 May 1927
• Docket Number: 366.
• Citation: Barber v. Southern Ry. Co., 193 N.C. 691, 138 S.E. 17 (N.C. 1927)
• Parties: BARBER v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

138 S.E. 17

193 N.C. 691

BARBER v. SOUTHERN RY. CO.

No. 366.

Supreme Court of North Carolina

May 11, 1927

Appeal from Superior Court, Rockingham County; Oglesby, Judge.

Action by G. E. Barber against the Southern Railway Company.Judgment for plaintiff, and defendant appeals.No error.

This is an action for actionable negligence brought by plaintiff against defendant.The defendant pleaded contributory negligence.The issues were the usual ones in such cases: (1) Negligence; (2) contributory negligence; (3) damages, and were answered in favor of plaintiff, and damages awarded.The material facts will be considered in the opinion.

Whether automobile driver should come to complete stop before entering railroad crossing is usually for jury.

Ivie Trotter & Johnston, of Reidsville, for appellant.

Glidewell Dunn & Gwyn, of Reidsville, for appellee.

CLARKSON J.

The injury to plaintiff occurred where the north and south bound main lines and side track of the defendant, Southern Railway Company, crossed Settle street in Reidsville, N.C. East Market street runs parallel with the railroad, and on the east side of the tracks.A watchman's shanty is at the mouth of Settle street on Market street.Plaintiff, on the evening, between 2 and 3 o'clock, of November 16, 1920 was driving a Buick touring car, with the curtains on containing isinglass windows.Beside him was his son, and in the rear seat was another boy, Scott Fillman.It was foggy pouring down rain, cold, and rain coming from the east.The passenger train was some 35 minutes late, running about 50 miles an hour, at full speed, when plaintiff was struck.Plaintiff, coming down East Market street, near Settle street crossing, slowed up his car, waiting for a long freight train, about 70 cars, to pass, going south, which was making the usual roaring noise, and for everything to get clear.Before he turned from East Market street into Settle street, he looked, glanced back, and could see some 75 yards.As he started to turn, he looked for the watchman-could see through the glass the whole street was clear; leaned over and looked south down railroad track to the left-the track was clear, could see down some 60 yards.When he proceeded to cross Settle street he was running about 5 miles an hour.Just as he got up on the first track, he heard a danger signal of several sharp blasts of the whistle of the train coming from the south, and, about the time he saw the watchman coming half running from the opposite side of Settle street, that he had started to cross, hollowing, "Stop."He stopped as quick as he could, reversed his car, and backed back about four feet, and while moving back the passenger train struck the front end of the car.The car was knocked about 60 feet.The Fillman boy was killed, plaintiff was seriously injured, and the car torn to pieces.The watchman's shanty was knocked off its foundation by the automobile, which was knocked about 60 feet.

Plaintiff testified that on a clear day a man on East Market street could see the train a quarter of a mile; no obstruction in the way to cut off view of train coming from the south.It was in evidence that the defendant kept a watchman at Settle street crossing, which was known to plaintiff.

The defendant introduced no evidence; (1) made a motion at the close of plaintiff's testimony, for judgment as in case of nonsuit (C. S. § 567); (2) requested the court below to charge the jury, "If you believe the evidence, you will answer the second issue, 'Yes"' (contributory negligence issue).Both requests refused, and exception taken by defendant, and errors assigned.

The defendant also excepted and assigned error to the charge of the court below as follows:

"Our law has also said that, where a railroad company maintains a flagman at a railroad crossing, whether voluntarily or by law or custom, the public generally has a right to presume that this safeguard will be reasonably maintained and attended to, and, in the absence of knowledge to the contrary, the fact that the flagman is absent from his post, or, if present, is not giving the warning of danger, is an assurance of safety and an ample invitation to cross, upon which a traveler familiar with the crossing may rely and act, within reasonable limitations, on the presumption that it is safe for him to go on the crossing."

On motion to nonsuit, the evidence is to be taken in the light most favorable to plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom.

We think the court below correct on all three propositions.There was sufficient evidence to be submitted to the jury on the issues both of negligence and contributory negligence.As to the charge as given, 2 Sherman & Redfield on the Law of Negligence (6th Ed.)p. 1158, citing a wealth of authorities, lays down the rule as follows:

"Where a railroad company is under no original obligation to station a flagman at a particular crossing yet if it was done so for a long time, travelers have a right to presume, in case of his absence, that the road is clear."

In Shepard v. R. R.,166 N.C. at page 545, 82 S.E. 874, the following is quoted with approval:

"In 33 Cyc. at page 1028, the author, speaking to this question, says: 'Where a railroad company maintains a flagman, gates, or other signals of warning at a railroad crossing, whether voluntarily or by law or custom, the public generally has a right to presume that these safeguards will be reasonably maintained and attended, and in the absence of knowledge to the contrary the fact that the gates are open, or automatic bells not ringing, or that the flagman is absent from his post or, if present, is not giving a warning of danger, is an assurance of safety and an implied invitation to cross upon which a traveler familiar with the crossing may rely and act within reasonable limits, on the presumption that it is safe for him to go on the crossing.The extent to which a traveler may rely on such assurance is a question of fact, and while ordinarily the same degree of care and vigilance is not required of a traveler under such circumstances as otherwise, he has no right to rely exclusively upon such circumstances, nor will such presumption or assurance excuse the traveler from using every reasonable

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