Campbell v. High Point, T. & D.R. Co.

• Decision Date: 15 June 1931
• Docket Number: 405.
• Parties: CAMPBELL v. HIGH POINT, T. & D. R. CO.
• Court: North Carolina Supreme Court

159 S.E. 327

201 N.C. 102

CAMPBELL v. HIGH POINT, T. & D. R. CO.

No. 405.

Supreme Court of North Carolina

June 15, 1931

Appeal from Superior Court, Guilford County; Schenck, Judge.

Action by Dewey Campbell against the High Point, Thomasville & Denton Railroad Company. Judgment for plaintiff, and defendant appeals.

Affirmed.

Refusal to give requested charge held not erroneous, where charges given covered law applicable to facts.

This was a civil action heard and tried in the municipal court of the city of High Point, before Lewis E. Teague, judge, and a jury, at the April term, 1930, of said court.

It is an action for actionable negligence brought by plaintiff against defendant. Defendant denied negligence and set up the plea of contributory negligence.

The evidence on the part of plaintiff was to the effect that he was a guest or gratuitous passenger in an Essex coach automobile driven by one W. G. Long. Long and his wife were in the front seat, Long at the steering wheel, and his wife beside him, plaintiff in the rear seat. The automobile was so constructed that it was necessary for the person in front of him to get up and the seat be turned down and open the door before plaintiff could get out. That defendant's train was backing and the automobile was stuck on the middle track Long and his wife, after sensing the situation, were able to escape, Long opening the door on his side and his wife the one on her side, but plaintiff was not able to escape in time, and in getting out behind Mrs. Long he got as far as the running board and was caught by the backing train of defendant and seriously injured, losing his leg, which had to be amputated about 3 inches below the knee.

The collision occurred on February 5, 1929, about 5 to 10 minutes after 12 o'clock noon, where defendant's railroad tracks cross Oak street in High Point. The automobile in which plaintiff was riding was headed north, traveling on the east side of Oak street. There were three railroad tracks of defendant crossing Oak street at this place. The center of the crossing, some 7 to 9 feet, was in fairly good condition for automobiles to cross, but the balance of the crossing was unballasted, uneven, and in bad condition on the side the automobile was being driven by Long. The rails projected up and the crossties could be seen. "The rails on Mr Long's side as he proceeded North were sticking up pretty high and pretty rough." The street was about 24 to 30 feet wide. Long was coming down the road on the right side traveling on that side, to avoid a car he was meeting. On approaching the tracks of the railroad crossing Oak street one could not see in the direction the train was coming on account of obstruction until within about 15 feet, or, as testified to by plaintiff, "practically on the crossing," and then not over some 40 feet. No train was seen or heard--no bell ringing or whistle blowing.

Long, the driver of the automobile, testified, in part: "I undertook to cross the crossing that is referred to in this case. *** I just got stopped on it. I tried to get the car off the track both ways, and there was only one thing to do and that was to jump out to keep from being killed. I couldn't get my car off because it was hung on the rail. When I went up to this crossing I looked both ways to see if a train was coming and saw none. I slowed down. I remember one automobile passing when I went to cross, and when that car was passing my car had to go away over to the right where the road was not filled up. In crossing there at that time I had to cross over the exposed T-irons. Dewey Campbell and my wife and myself were in the car. Dewey Campbell had nothing to do with the driving of the car. The train hit my automobile just about the time I got out. It went about 40 feet down the track. If the train slackened its speed I couldn't tell it. It tore my automobile all to pieces."

It was further in evidence that Long, after getting stuck between the rails, tried to go forward and then backward, but could do neither. The wheels of the automobile were spinning around, snow was on the ground. As soon as plaintiff discovered the situation he exclaimed to Long, "Lord, Bill, there's the train," and the train was backing on them some 50 feet away.

T. P. Anderson, a witness for plaintiff, testified, in part: "I was familiar with the condition of the crossing. I don't think the space between the rails was filled in for the entire width of the crossing with either wood, brick, concrete, stone or other suitable material all the way across. *** When I first saw his car it was on the track. From the time I first saw the train it was at least 100 feet from the car. *** I saw the occupants in the car. Mr. Long appeared to be trying to move his car. I saw Mr. Campbell rise up just a short time before Mr. Long opened the door to get out. The train was thirty to forty feet when I saw Mr. Campbell raise up in the back of the car. I saw Mr. Long get out; I saw Mrs. Long get out; I saw Mr. Campbell start out the same door Mrs. Long went out of."

The issues submitted to the jury and their answers thereto, were as follows:

"1. Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

"2. Did the plaintiff, by his own negligence, contribute to his injury, as alleged in the answer? Answer: No.

"3. If so, could the defendant, by the exercise of reasonable prudence and proper care, have avoided injuring the plaintiff, as alleged in the complaint? Answer: --.

"4. What damage, if any, is the plaintiff entitled to recover of the defendant? Answer: $11,875.00."

Judgment was rendered on the verdict by the municipal court of the city of High Point. Numerous exceptions and assignments of error were made by defendant and appeal taken to the superior court.

The following judgment was rendered in the superior court: "This cause coming on to be heard upon appeal from the Municipal Court of the City of High Point, and being heard upon the assignments of error on the part of the defendant as set forth in the record: It is ordered that each and every assignment of error appearing in the record be overruled; that the judgment heretofore rendered in the Municipal Court of the City of High Point be in all things affirmed, and that the Clerk of this Court certify this opinion to the Municipal Court of the City of High Point to the end that said cause may be proceeded with according to law."

The defendant made numerous exceptions and assignments of error, the same as on the appeal to the superior court, and appealed to the Supreme Court. The material ones and necessary facts will be set forth in the opinion.

Lovelace & Kirkman, of High Point, and King, Sapp & King, of Greensboro, for appellant.

Frazier & Frazier, of Greensboro, and Gold, York & McAnally, of High Point, for appellee.

CLARKSON J.

At the close of plaintiff's evidence and at the close of all the evidence, the defendant made motions in the municipal court of the city of High Point for judgment as in case of nonsuit. C. S. § 567. The court refused these motions, and in this we can see no error. On appeal to the superior court the numerous exceptions and assignments of error taken to the trial in the municipal court on question of law were overruled, which we think correct.

It is the settled rule and the accepted position in this jurisdiction that, on a motion to nonsuit, the evidence which makes for the plaintiff's claim and which tends to support his cause of action, whether offered by the plaintiff or elicited from the defendant's witnesses, will be taken and considered in its most favorable light for the plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom. The evidence in the present action was to some extent conflicting, but this was a matter for the jury to determine.

An ordinance in regard to railroad crossings, in force in the city of High Point, at the time, is as follows: "It shall be the duty of all railroad companies owning or operating railroads within the limits of the City of High Point to keep all grade crossing and overhead bridges, used by vehicles or pedestrians, or both, in a smooth, level, clean and perfectly safe condition at all times by paving same with wood, brick, concrete, stone or other suitable materials; said crossings to be so maintained for the full width of the street and sidewalks and for the full distance of the railroad right-of-way on both sides of the track or tracks; that any railroad company failing to keep and observe the requirements of this ordinance shall be subject to a penalty of $25.00 for each offense; that each day's failure or neglect on the part of any railroad company to keep and observe any of the requirements or provisions of this ordinance shall constitute a separate and distinct offense."

If Long, the driver of the car, had been injured and had brought an action against defendant, the evidence was sufficient to be submitted to the jury on the question of negligence and contributory negligence. Earwood v. R. R., 192 N.C. 27, ...