Batchelor v. Atlantic Coast Line R. Co.

• Decision Date: 26 September 1928
• Docket Number: 54.
• Citation: 144 S.E. 542,196 N.C. 84
• Parties: BATCHELOR v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

144 S.E. 542

196 N.C. 84

BATCHELOR v. ATLANTIC COAST LINE R. CO.

No. 54.

Supreme Court of North Carolina

September 26, 1928

Appeal from Superior Court, Nash County; Midyette, Judge.

Action by Jake Ward Batchelor, administrator of the estate of B. W Batchelor, deceased, against the Atlantic Coast Line Railroad Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Railroad's failure to maintain gongs at crossing not obstructed nor more than ordinarily hazardous held no evidence of negligence.

The plaintiff is the administrator of Ward Batchelor.

The evidence tended to show that plaintiff's intestate was a successful farmer, about 64 years old, and that on or about December 22, 1924, he was returning from Nashville to his home and was driving his automobile. The road upon which plaintiff's intestate was traveling runs parallel with the right of way of defendant railroad company for some distance until it gets about 150 feet from the crossing. Plaintiff's intestate was traveling west, and the train of defendant was traveling east. Hence a traveler on this highway, approaching the crossing, would be facing the train until he got about 150 feet from the crossing. At a point in the road 40 or 50 feet from the crossing, the traveler, by merely looking up, could have seen the trian 125 yards off. At a point in the road 60 feet from the crossing "there is no obstacle or obstruction to anybody's sight for 275 yards up the the track." There was a North Carolina Stop Law sign at the crossing. There was also a "stop, look and listen" sign. On the date specified, plaintiff's intestate approached the crossing traveling at a rate of speed estimated between 15 and 20 miles an hour. He was familiar with the crossing by reason of the fact that he had crossed the track of the defendant at that point four times a day for ten or twelve years. The evidence further tended to show that the deceased was also familiar with the schedule of trains. The evidence further showed that the train gave the proper signals for the crossing.

The highway crosses the railroad track diagonally. An eyewitness describing the collision, said:

"The automobile ran up on the crossing and the train scooped it up on the cowcatcher, hitting the car from the right front, which made the right front of the car slide up on the cowcatcher and lift the rear wheels of the automobile on the track, or something like that. The train pushed the automobile down the track a distance of 154 feet, where the automobile struck a bridge, which knocked the automobile off the track and loose from the engine. The side of the automobile was crushed."

Plaintiff's intestate died a short time after being removed from the scene of the collision. The crossing is 191 feet from the corporate limits of the town of Nashville. The road from Nashville to Spring Hope, upon which plaintiff's intestate was traveling, was a "much-traveled road as a county road but not as a highway." The train of defendant was composed of an engine, baggage car, and one passenger coach.

At the conclusion of plaintiff's evidence, there was judgment of nonsuit, and the plaintiff appealed.

Cooley & Bone, of Nashville, and H. S. Ward and Stephen C. Bragaw, both of Washington, N. C., for appellant.

Spruill & Spruill, of Rocky Mount, for appellee.

BROGDEN J.

Three questions are presented for decision:

1. Is the failure of a railroad company to maintain a watchman, gates, gongs, or other devices at a public crossing in the country, evidence of negligence in an action brought by a person injured by collision with a train at such crossing?

2. Was there evidence to be submitted to the jury on the question as to whether the engineer of the train could have stopped before hitting the bridge?

3. Was the statement of the engineer of the train after the collision admissible in evidence?

Upon the first question the plaintiff relies upon Dudley v. R. R., 180 N.C. 34, 103 S.E. 905. The principle of law announced was as follows:

"It was not error for the court to permit the plaintiffs to offer evidence that there was no automatic alarm, or gates, at the crossing, and the court properly left it to the jury to say, upon all the attendant circumstances, whether the railroad company was negligent in not erecting gates. It was incumbent, upon the defendant to take such reasonable precautions as were necessary to the safety of travelers at public crossings. 22 R. C. L. 988. This was a question of fact for the jury. That the city authorities assented that a watchman should be stationed at the crossing was not conclusive upon the plaintiffs if, in the opinion of the jury upon the evidence, this was not sufficient protection to the public."

This language, interpreted without reference to the facts upon which the decision was based, perhaps supports the contention of plaintiff that it is the duty of railroad companies to install gates or gongs at all public crossings in the state and that a failure to comply with this duty would be evidence of negligence in personal injury actions resulting from collisions with trains. However, it appears that the crossing involved was upon a much-used street in the town of Washington, and that the vision of the traveler was obstructed by a warehouse. The Dudley Case was relied upon as an authority in the case of Blum v. R. R., 187 N.C. 640, 122 S.E. 562. In that case Adams, J., concurred in the result, and Stacy, J., while concurring in the result, calls attention to the fact that the question of the erection of gongs or...