Bundy v. Powell

• Citation: 51 S.E.2d. 307,229 N.C. 707
• Decision Date: 07 January 1949
• Docket Number: No. 601.,601.
• Court: United States State Supreme Court of North Carolina
• Parties: BUNDY. v. POWELL et al.

51 S.E.2d. 307

229 N.C. 707

BUNDY.

v.POWELL et al.

No. 601.

Supreme Court of North Carolina.

Jan. 7, 1949.

ERVIN, J, took no part in the consideration or decision of this case.

Appeal from Superior Court, Union County; Chas. Coggin, Special Judge.

Action by Charles W. Bundy, administrator of the estate of Joel Jehu Secrest, against L. R. Powell, Jr., and Henry W. Anderson, receivers of Seaboard Air Line Railway Company, and others, for wrongful death of plaintiff's intestate in a grade crossing collision. From a judgment of nonsuit, plaintiff appeals.

Non-suit set aside, and reversed.

The plaintiff's intestate, Joel Jehu Se-crest, was killed instantaneously on the morning of February 19, 1945, when his automobile was demolished by an east-bound freight train of the Seaboard Air Line Railway Company at a grade crossing two miles west of Monroe in Union County. D. S. Craddock was the engineer in charge of the train, and the crossing was located in the section assigned to W. T. Ballentine, section foreman, for maintenance. The plaintiff sued the defendants, L. R. Powell, Jr., and Henry W. Anderson, Receivers of the Seaboard Air Line Railway Company, D. S. Craddock, and W. T. Ballentine, under G.S. § 28-173, for damages for the death of his intestate upon a complaint alleging that such death was proximately caused by the negligence of the defendants. They denied that they had been guilty of any actionable negligence, and pleaded contributory negligence on the part of the intestate as an affirmative defense.

There was substantial disagreement in the evidence of the parties relating to the merits of the action. A few facts, however, were not in dispute. The railroad track ran east and west parallel to Highway No. 74 located at least 125 yards to the north. The grade crossing marked the place where the railroad was bisected at right angles by a dirt road affording the only means of communication between Highway No. 74 on the north and a farming community, in which W. H. Smith resided, on the south. Although this neighborhood road was a private way in a legal sense, the crossing had been habitually used by the public and maintained by the Seaboard Air Line Railway Company for many years. Indeed, the defendants admitted in their answer that it was their duty at the time in controversy to exercise due care to keep the crossing in a reasonably safe condition. The right of way of the railroad company covered "100 feet on each side of the center of the track."

The plaintiff offered testimony tending to establish the matters set out in this paragraph. At the time of the fatal accident, the. crossing was "very rough." The ballast "seemed to be knocked out between the rails. On the outside of the rails it was very rough too. The rails stuck up above the level of the surrounding dirt or rocks 4 to 8 inches." As a motorist proceeded south from Highway No. 74 towards the crossing, he traveled upgrade, and could not see the track to the westward on account of shrubbery which grew to a point within 10 or 15 feet of the track. From this point to the land lying south of the track, the motorist's view of an east-bound train coming from the west was limited to a space of 200 yards because the railroad beyond that distance lay within a hollow. When the tragic collision occurred, the plaintiff's intestate and a fellow-workman, J. F. Griffin, were going south on the dirt road to resume carpentering which they had begun earlier that day at the home of W. H. Smith. They were traveling in an automobile, which was owned and operated by the intestate, and which was "in good working condition." Just before entering upon the crossing, they looked westwardly along the railroad to the head of the hollow, and noted that no eastbound train was approaching within range of sight or hearing.

Subsequent events were described by Griffin, who testified for plaintiff, in substantially this wise: "As we approached the crossing, Secrest was driving 10 or 15 miles per hour. The car stalled as he straddled the track. The motor stopped. The front wheels had crossed the south rail. The rear wheels had not crossed the north rail. As soon as I realized the car had stopped, I looked at the track and saw the train coming from the west, and I touched Secrest on the arm and told him to jump out, and by the time I opened the door and ran the train had done struck the car. I judge the train was around 200 yards away at the time it entered up there where I could see it. It had just entered the top of the hollow there. I got out withoutinjury. At the time the train hit the automobile I hadn't got stopped from running. I could not tell that the train slackened its speed from the time I saw it until it hit the car. In my opinion, the train was running 65 to 70 miles an hour. I was on the right hand side of the car next to the driver. In getting out, I didn't have to go around anything to get clear of the train. Secrest would have had to get out from under the steering wheel. He had more opposition than I did. I didn't hear the train give any signal by whistle or bell as we approached the crossing and before I saw the train. I didn't hear it give any signal before the collision. I saw the train when it came to a stop. The front of the train ran about half a mile from the crossing. It was a pretty long freight train. I went down to Secrest before he was moved. He was dead. He was about 60 yards cast of the crossing on the north side."

The defendants offered oral testimony of witnesses and photographs allegedly taken at the scene by their witness, W. M. White, shortly after the collision and received in evidence without objection tending to show that the conditions described in this paragraph prevailed at the time named in the pleadings. The ballast on the crossing formed a solid roadbed virtually even with the tops of the rails. The right of way was free of shrubbery and other obstructions. The railroad track ran westward from the crossing in a straight line without material elevations or depressions for approximately three miles. As a southbound motorist on the dirt road neared the crossing, he had the benefit of an unobstructed view of the track westwardly for distances varying from 1200 feet at a point 25 feet north of the crossing to upwards of three miles at the first rail.

Witnesses for the defendants testified, in substance, that the freight train drew near to the crossing at a speed not exceeding 35 miles an hour after signaling its approach by sounding its whistle, and that the plaintiff's intestate precipitately drove his automobile onto the crossing 200 feet ahead of the oncoming train, thereby rendering the lethal crash inevitable. In addition, the defendants offered testimony in dicating that on the day of the accident some of the witnesses for the plaintiff made statements inconsistent with their testimony at the trial and calculated to cast doubt on their credibility.

The court entered a compulsory judgment of nonsuit pursuant to the motion of the defendants made when the plaintiff rested, and renewed at the close of all the evidence, and the plaintiff appealed, assigning such ruling as error.

E. O. Ayscue, of Monroe, and Robinson & Jones, of Charlotte, for plaintiff, appellant.

Milliken & Richardson, of Monroe, and Cansler & Cansler, of Charlotte, for defendants, appellees.

ERVIN, Justice.

Counsel for the defendants conceded with commendable candor on the argument and in their brief that the plaintiff adduced enough evidence on the trial to make the question of actionable negligence on the part of the defendants one for the determination of a jury. For this reason, we pass over this phase of the case, and proceed at once to inquire whether the judgment of nonsuit can be sustained on the ground that the plaintiff's intestate was contributorily negligent as a matter of law. The parties join battle on this issue. The plaintiff asks a reversal upon the authority of Cashatt v. Brown, 211 N.C. 367, 190 S.E. 480, and Moore v. Atlantic Coast Line R. Co., 201 N.C. 26, 158 S.E. 556. The defendants pray for an affirmance on the basis of these decisions: Penland v. Southern R. Co., 228 N.C. 528, 46 S.E.2d 303; Wilson v. Southern R. Co., 223 N.C. 407, 26 S.E.2d 900; Bailey v. North Carolina R. Co., 223 N.C. 244, 25 S.E.2d 833; Jeffries v. Powell, 221 N.C. 415, 20 S.E.2d 561; McCrimmon v. Powell, 221 N.C. 216, 19 S.E.2d 880; Godwin v. Atlantic Coast Line R. Co., 220 N.C. 281, 17 S.E.2d 137; Temple v. Hawkins, 220 N.C. 26, 16 S.E.2d 400.

Contributory negligence is an affirmative defense which the defendant must plead and prove. G.S. § 1-139. Nevertheless, the rule is firmly embedded in our adjective law that a defendant maytake advantage of his plea of contributory negligence by a motion for a compulsory judgment of nonsuit under G.S. § 1-183 when the facts necessary to show the contributory negligence are established by the plaintiff's own evidence. Daughtry v. Cline, 224 N.C. 381, 30 S.E.2d 322, 154 A.L.R. 789; Montgomery v. Blades, 222 N.C. 463, 23 S.E.2d 844; Smith v. Sink, 211 N.C. 725, 192 S.E. 108; Hayes v. Western Union Telegraph Co, 211 N.C. 192, 189 S.E. 499; Ramsey v. Nash Furniture Co, 209 N.C. 165, 183 S.E. 536; Mason v. Atlantic...