Brown v. Atlantic Coast Line R. Co.

• Decision Date: 29 March 1916
• Docket Number: 286.
• Citation: 88 S.E. 329,171 N.C. 266
• Parties: BROWN v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

88 S.E. 329

171 N.C. 266

BROWN v. ATLANTIC COAST LINE R. CO.

No. 286.

Supreme Court of North Carolina

March 29, 1916

Appeal from Superior Court, Columbus County; Daniels, Judge.

Action by E. M. Brown against the Atlantic Coast Line Railroad Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Where the view was obstructed, whether a motorist who attempted to cross tracks failed to use care in proportion to the danger held, under the evidence, for the jury.

The defendant, in its brief, states with sufficient accuracy the respective contentions of the parties, and we adopt its statement as containing the material facts.

"This was an action brought by the plaintiff against the defendant to recover damages for personal injuries received by him and damage to his automobile, claimed to have been caused by the negligence of the defendant while plaintiff in his automobile was attempting to cross the tracks of the defendant in the town of Cerro Gordo. Plaintiff alleged that on the 18th day of December, 1914, while going over a public crossing in the town of Cerro Gordo, a few feet west of the defendant's station, he was struck by a train of the defendant, which was negligently approaching the crossing without giving any signal by bell, whistle, or otherwise. He alleges that the crossing was negligently constructed and defective, in that there was no material between the rails on the track and each side of the rails of the track to serve as a support for the wheels of vehicles using the same in crossing and which would have held them up near the level of the top of the rails and made the crossing safe for public use by providing for vehicles attempting to use the same to pass without unusual jars, and without stalling on the track and crossing, and was too narrow to permit vehicles to pass each other over the same, and that he drove his automobile in a careful and safe manner towards the crossing, making careful observation for approaching trains, having due regard to his safety and the safety of other persons who might be using the crossing, and when he reached a point between the rails of the defendant's main line of track, he observed, approaching from the north, a vehicle, which he had been prevented from seeing before he got on the track by the cars of the defendant which had been negligently left on the side track and that in order to prevent a collision with the vehicle, he was compelled to stop his car at said point on the track when he observed, approaching from the west, an engine and cars, which had failed to give any signal, and he immediately signaled to the engineer in charge of the train to stop, and attempted to back his automobile off of the track, which he failed to do by reason of the negligent construction of the crossing. He further alleges that his engine stalled and stopped, and the defendant's engineer failed and refused to stop the train or to give any attention to his signals of distress, and negligently struck him and his car, and injured him. All of which the defendant denies. The second cause of action is upon the same statement of facts, except that it alleges damage to the machine. The defendant alleges that the plaintiff was guilty of negligence, in that he negligently ran his automobile on the track, immediately in front of the defendant's train while it was moving forward along the track, when the train was too close to stop before striking the machine, and that he negligently failed to stop and look and listen for the train before going on the track, and that he could have prevented the injury; as he could have seen and heard the train, in time to have stopped his machine and avoided the injury."

The jury returned a verdict for the plaintiff, finding that there was negligence on the part of the defendant and none by the plaintiff, and assessed damages for the personal injuries at $1,600 and for injury to the automobile at $400. Judgment was entered thereon, and defendant appealed.

Davis & Davis, of Wilmington, and Schulken, Toon & Schulken, of Whiteville, for appellant.

Irvin B. Tucker and H. L. Lyon, both of Whiteville, for appellee.

WALKER J. (after stating the facts as above).

A careful analysis of the record convinces us that there has been no error committed in this case. On December 18, 1914 plaintiff attempted to cross defendant's track, on a public highway, intersected by it, in his automobile. He testified that he both looked and listened for approaching trains, but that his view was obstructed by cars of the defendant, negligently left on a parallel track and by other hindrances, and that he looked as best he could, and also listened for the noise of the train and signals for the crossing, but heard none; that he went upon the track believing it to be safe to do so, and being induced to do so by the defendant's failure to give proper warning of the approach of one of its trains, and that he would have crossed safely had it not been for the approach of another person in a vehicle from the other side of the track, which prevented his going on, as he had intended to do. He then backed over the track in the direction from which he had come, but that the crossing was in such bad condition as to cause his automobile to stall on the track, and the train which was coming towards him at the time, and in full view of his perilous position, ran into him and damaged him and his automobile. He further testified that the engineer could have seen that he was in trouble with his car on the track and in danger of a collision, if he did not stop his train, which he had full time and opportunity to do before reaching the place on the track where the plaintiff had stopped, and that he signaled the engineer to stop. There was other evidence tending to show that defendant's servants were negligent, and that plaintiff was free from fault. The court submitted the case to the jury under a charge, which was exceptionally clear in its statement of the law as applicable to the facts, and which covered completely every phase of the case. It certainly was not unfavorable to the defendant, and was entirely free from any error. The jury, under the evidence and the charge, considered in connection with the verdict, must have found that defendant so obstructed the view of its track from the road that plaintiff could not see or hear approaching trains, although he looked and listened for them, and that def...