Brown v. Atlantic Coast Line R. Co.

• Decision Date: 11 March 1970
• Docket Number: No. 25,25
• Citation: 172 S.E.2d 502,276 N.C. 398
• Court: North Carolina Supreme Court
• Parties: Roland J. BROWN, Administrator of the Estate of Ossie D. Brown, Deceased v. ATLANTIC COAST LINE RAILROAD COMPANY. William E. PHILLIPS, Sr., Administrator of the Estate of William E. Phillips, Jr., Deceased v. ATLANTIC COAST LINE RAILROAD COMPANY.

Page 502

172 S.E.2d 502

276 N.C. 398

Roland J. BROWN, Administrator of the Estate of Ossie D.

Brown, Deceased v. ATLANTIC COAST LINE RAILROAD COMPANY.

William E. PHILLIPS, Sr., Administrator of the Estate of William E. Phillips, Jr., Deceased v. ATLANTIC COAST LINE RAILROAD COMPANY.

No. 25.

Supreme Court of North Carolina.

March 11, 1970.

Pittman, Staton & Betts, Sanford, for plaintiffs appellants.

Henry & Henry, Lumberton, and Cameron, Harrington & Love, Sanford, for defendant appellee.

SHARP, Justice.

Defendant Railroad was under a duty to give timely warning when its train approached the visually obstructed and much traveled Rose Street crossing. Cox v. Gallamore, 267 N.C. 537, 148 S.E.2d 616; Jarrett v. R.R., 254 N.C. 493, 119 S.E.2d 383; High v. R.R., 248 N.C. 414; 103 S.E.2d 498; Summerlin v. R.R., 238 N.C. 438, 78 S.E.2d 162; 6 Strong, N.C. Index Railroads § 6 (2d ed. 1968). Assuming the truth of plaintiffs' evidence, as we must in passing upon a motion for nonsuit, it would justify a finding by the jury that defendant failed to give any warning as its locomotive approached the crossing. Kinlaw v. R.R., 269 N.C. 110, 152 S.E.2d 329. Plaintiffs' evidence establishes the negligence of Mrs. Phillips. With full knowledge of the obstructed crossing, she drove toward it at an undiminished speed of 30--35 MPH. Carter v. R.R., 256 N.C. 545, 124 S.E.2d 561; Summerlin v. R.R., Supra.

On this evidence the negligence of the driver cannot be imputed to plaintiffs' intestates, and they were guilty of no contributory negligence. Harper v. R.R., 211 N.C. 398, 190 S.E. 750; Johnson v. R.R., 205 N.C. 127, 170 S.E. 120; 6 Strong, N.C. Index Railroads § 7 (2d ed. 1968). Therefore, unless Mrs. Phillips' negligence relieves defendant Railroad from liability, the judgments of nonsuit were erroneously entered. Defendant contends that even if plaintiffs' evidence shows it to have been 'in some respect negligent,' it also shows the death of plaintiffs' intestates to have been 'independently and proximately produced by the wrongful act, neglect or default of a responsible third person, to-wit: Mrs. Phillips, the operator of the pickup truck.' In support of this proposition, defendant relies, Inter alia, upon Jones v. R.R., 235 N.C. 640, 70 S.E.2d 669; Hinnant v. R.R., 202 N.C. 489, 163 S.E. 555, and--most heavily--upon Jeffries v. Powell and Branch v. Powell, 221 N.C. 415, 20 S.E.2d 561.

Jeffries v. Powell and Branch v. Powell, Supra, were suits against a railroad by the driver of an automobile and the administrator of his deceased passenger. The driver was injured and the passenger killed when a train struck the vehicle at a grade crossing. Plaintiffs' evidence tended to show that the 'whistle didn't blow and the bell didn't ring.' In affirming judgments of nonsuit, Winborne, J. (later C.J.), said: '(I)t is clear from the evidence that the negligence of Branch (the driver) was such as to insulate the negligence of defendants, and that his negligence was the sole proximate cause of the collision between his automobile and the train of defendants in which Jeffries lost his life.' In concluding the opinion he quoted from Chinnis v. R.R., 219 N.C. 528, 531, 14 S.E.2d 500, 502: 'Conceding that there was evidence of failure on the part of defendant to sound whistle or bell to give warning of the approach of the train to the crossing, it is clear that the active negligence of the driver of the automobile, subsequently operating, was the real efficient cause of the injury to plaintiff's intestate. * * * The negligence of the driver of the automobile was patent. It intervened between the failure of the defendant to give warning of the approach of the train to the crossing and the injury to plaintiff's intestate, and it began to operate subsequent to any act of negligence on the part of defendant, and continued to operate to the instant of injury.'

Plaintiffs in the instant case, contending that intestates' deaths were proximately caused by the joint and concurring negligence of defendant Railroad and the driver of the truck, rely, Inter alia, upon Cox v. Gallamore, 267 N.C. 537, 148 S.E.2d 616; Henderson v. Powell and Rattley v. Powell, 221 N.C. 239, 19 S.E.2d 876; Harper v. R.R., 211 N.C. 398, 190 S.E. 750; Johnson v. R.R., 205 N.C. 127, 170 S.E. 120.

In Henderson and Rattley, supra, two passengers were injured, one fatally, when McCrimmon, the operator of the automobile in which they were riding, drove upon a blind crossing over a much used public street. There was no watchman or automatic signaling device to give warning of an approaching train. The driver testified that he stopped his car, looked and listened. Then, seeing nothing and hearing no whistle, bell, or signal, he drove upon the tracks and was struck by a speeding train. The trial judge nonsuited the plaintiffs, who appealed. In overruling the nonsuit and disposing of defendant's contention that 'the intervening negligence' of the driver of the car 'insulated' the defendant's negligence and became the 'sole proximate cause,' Seawell, J., speaking for the Court, reasoned: 'It took the combined activities of the railroad company and McCrimmon to bring their respective vehicles into the collision * * *. The formula proposed by defendants would exonerate both of them with equal impartiality.' The duties of the railroad and those using the crossing 'are reciprocal, interrelated, and immediate; and, whatever the previous history of neglect, are concurrently in force and effect as soon as the zone of danger is created by simultaneous approach to the intersection.' No negligence is 'insulated' so long as it plays a substantial and proximate part in the injury. The legal effect of the active negligence of two independent agencies, simultaneously occurring, and inflicting injury upon a third person hinges upon the question of foreseeability. The test is whether the intervening act and the resultant injury is one that the original actor could have reasonably foreseen and expected. The negligence of McCrimmon was not 'of such an extraordinary character as to be beyond the limits of foreseeability.'

As opinion writers have frequently noted, cases involving grade-crossing accidents are myriad, and 'no good can be obtained from attempting to analyze the close distinctions drawn in the decisions of these cases, for * * * each case must * * * be governed by the controlling facts there appearing.' Faircloth v. R.R., 247 N.C. 190, 193, 100 S.E.2d 328, 331, and Hampton v. Hawkins, 219...