Blum v. Southern Ry. Co.

• Decision Date: 30 April 1924
• Docket Number: 460.
• Citation: 122 S.E. 562,187 N.C. 640
• Parties: BLUM v. SOUTHERN RY. CO. ET AL.
• Court: North Carolina Supreme Court

122 S.E. 562

187 N.C. 640

BLUM v. SOUTHERN RY. CO. ET AL.

No. 460.

Supreme Court of North Carolina

April 30, 1924

Appeal from Superior Court, Mecklenburg County; Harding, Judge.

Action by Margaret Blum, executrix, against the Southern Railway Company and others. Judgment for plaintiff, and defendants appeal. No error.

In an action for death at a grade crossing, an instruction that railroad would not be negligent in not maintaining an automatic gong or other safety device at crossing, and that absence of a gong or other safety device should not be considered in passing upon issue of negligence, invaded the province of the jury, under the evidence.

This action was brought to recover damages for the wrongful death of the husband of the testator who was killed at a grade crossing over the tracks of the defendant at Linwood near noon on September 26, 1922. The automobile in which he was riding with Mr. Robert J. Hayes on the highway from Charlotte to Lexington was struck by defendant's train running south an hour and 10 minutes late, and at about 45 miles an hour, instantly killing them both as they came through an opening in a string of box cars stored on each side of the crossing and along a side track immediately adjacent and parallel with the main line track on which the train was running. These box cars cut off the view of the deceased and his companion of the train as it approached the crossing.

The usual issues of negligence, contributory negligence, and damages were submitted to the jury and answered in favor of the plaintiff, and her damages assessed in the sum of $32,000. From the judgment on the verdict, the defendants appealed.

O. F Mason, of Gastonia, and F. M. Shannonhouse, of Charlotte, for appellants.

John M Robinson and W. S. O'B. Robinson, Jr., both of Charlotte for appellee.

CLARK C.J.

The defendants rely upon the refusal of a nonsuit, errors in the admission of evidence and in the charge and the refusal of the court to give certain instructions. The exception because of refusal to nonsuit requires no discussion.

The defendants excepted to the admission of evidence as to the use of gongs at other crossings. This court has repeatedly said that where there was a grade crossing it was incumbent upon the defendant railroad company to give notice of the approach of its train by blowing the whistle or sounding the bell or ringing a gong, and, in proper circumstances, having a watchman to lower gates; which of these precautions should be taken being a matter of evidence upon the surroundings and the facts of the particular case. Dudley v. Railroad, 180 N.C. 36, 103 S.E. 905.

In many of our states, as in all other countries, the railroads have been required to be constructed without grade crossings, and where this was not done in many states they have since been required to abolish them because of their interference with the right and safety of the public to use their own highways, which right is superior to that of eminent domain by which railroads have been authorized to be operated for the public convenience and for profit to its owner, but in subordination to the rights of the public. Being useful to the public, they are held quasi public corporations, but have been granted the right of eminent domain to take private property for their use as right of way, subject to public regulation as to their conduct and charges.

In this state the Corporation Commission was authorized in 1907 to require the abolition of all grade crossings of the public highways by railroad tracks wherever desirable (C. S. 1048), and this has been done according to a recent report of the highway commission in a great many cases. It had not been done, however, in this particular locality. Where it has not been done, there is recognition of the right of the public to use its own roads with safety to life and limb from the operation of trains by requiring fullest notice of the approach of a train by the engineer blowing a whistle and ringing a bell and by installing electric gongs where necessary to warn travelers, and in all much-frequented places they have gates and custodians to keep them. Railroad v. Goldsboro, 155 N.C. 359, 363, 71 S.E. 514, approved on writ of error, 232 U.S. 548, 34 S.Ct. 364, 58 L.Ed. 721, and citing cases in Anno. Ed.

In Germany for 40 years the approach of trains to railroad stations has been announced by electric gongs operated automatically by the wheels of the engine making an electric circuit as it passes over a device located several hundred yards distant, which rings a gong over the annunciator in the station, giving notice as to what train is arriving, instead of by the human voice, as is usual here. The same device is often used by some railroads here, including defendants, to give warning at crossings, in addition to signals by whistle and bell. These matters have been often sustained by decisions in this court.

In this state there are over 5,500 miles of railroad tracks and very many times as large a mileage of roads owned by the public, over which latter there now pass constantly 250,000 automobiles and motor trucks licensed by the state, besides horse-drawn vehicles many times as numerous, and other conveyances of both kinds from other states. These carry an immense number of persons and a vast quantity of freight. As vehicles pass along the public roads far more frequently than do trains along the tracks, it has always been held reasonable that the railroads should be required to give notice by signals, and, where necessary, by gates or gongs, of the approach of one of their dangerous agencies, so that the traffic and travel by the public over their own public roads shall be protected from unnecessary dangers from railroad trains. The railroad companies are granted existence by legislation, and are operated for private profit in this country, though it is true in all other countries, with rare exceptions, they are the property of the government, and operated like the post office or the army or navy, or like our railroads were during the war, by the government.

In this case the evidence comes largely from the defendant's own witnesses, and upon it the jury found that the death of the plaintiff's testator was caused by the negligence of the defendants, and that he was not guilty of contributory negligence.

The defendant's tracks at the point in question (Linwood) run practically north and south and the intersecting highway along which Mr. Blum and his companion were traveling eastward, ran practically east and west. There are three railroad tracks at that point over the crossing. The western one is a side track upon which the box cars were stored at the time of the accident. The second or middle track is the main line track for south-bound trains upon which the train in question was running; and the third, or eastern track is the main line track for north-bound trains. The distance between the center line of the side track and the center line of the south-bound track at this point is 13 feet. The crossing in question is known as the "depot crossing"; 790 feet to the north is the "Lexington crossing," and 1917 feet north of the Lexington crossing is what the witnesses called, the "farm road crossing." The station blow post for the Linwood depot is 5,402 feet north of the depot crossing. The south-bound whistle post for the depot crossing is 1,429 feet north of the center of the crossing. The station blow post for south-bound trains which this was, is around a curve in the track, and is located in a slight cut. Further on towards the station from this blow post the cut gets deeper up to an 18 or 20 foot cut, and at 300 feet from the station blow post it is about a 15-foot cut. The grade of the railroad tracks from the station blow post ascends for the first 3,500 feet, but from a point 2,300 feet north of the depot crossing it is down grade to the crossing and beyond.

Approaching the crossing on the highway from the west going east, as the deceased was traveling, there are obstructions on the north or left-hand side of the highway, such as trees and buildings, so that even if there had been no box cars banked along the side track persons approaching the crossing from the west going east could scarcely have seen a train approaching from the north going south as this train was. The right of way of the railroad is 100 feet on each side of the center line of the tracks, and the permanent obstructions referred to are therefore located partly on the right of way.

J. O. Lee, a witness for the defendants, who passed over the crossing shortly before the deceased and his companion, testified that the conditions existing at the crossing made it "a death trap." Fourteen box cars were parked to the south of the crossing and 47 to the north, from which direction the train came, with a narrow opening left at the crossing through which travelers were required to pass. The box cars extended 1,980 feet north of the depot, with another opening left in the line at the Lexington crossing. The accident happened Thursday, September 26, 1922, and the box cars had been standing parked on each side of the crossing since the Saturday before.

Many witnesses for both the plaintiff and defendants agree that it was impossible for a traveler along the highway going east to have seen a south-bound train until the front wheels of his automobile were on the south-bound track, where it would be struck by that train.

According to the evidence, there were no precautions of any nature whatever for the protection of travelers at the crossing made by the defendants, notwithstanding that the crossing was a part of the public highway, and the principal public road in the village for 30 years. According to the...