Cashatt v. Brown

• Citation: 190 S.E. 480,211 N.C. 367
• Decision Date: 17 March 1937
• Docket Number: 667.
• Parties: CASHATT v. BROWN et al.
• Court: United States State Supreme Court of North Carolina

190 S.E. 480

211 N.C. 367

CASHATT v. BROWN et al.

No. 667.

Supreme Court of North Carolina

March 17, 1937

Appeal from Superior Court, Davidson County; Frank S. Hill, Special Judge.

Action for wrongful death by Mrs. Vernon B. Cashatt, administratrix of James William Campbell, deceased, against Tom Brown and the Norfolk & Western Railway Company. From an order sustaining motion for judgment as in case of nonsuit at close of plaintiff's evidence, plaintiff appeals.

Reversed.

This is an action for actionable negligence brought by plaintiff against defendants for killing her intestate on September 25 1935, at a railroad crossing near Price Station known as Baughn's Crossing.

In the complaint it is alleged in part: "That at a point on said railroad and right of way of the defendant company at a place about one-half mile in the direction of Winston-Salem North Carolina, from Price station on said railroad, there is a crossing which leads from a county or state maintained road across the main line track of the defendant company's side track, which said crossing leads into a place where two houses are situated, and said crossing is known as Baughn's crossing, and said road ran over the place where said crossing now exists prior to the construction of said railroad, and that by reason of the construction of said railroad, a crossing at said place was made necessary, and the public and other persons who desired to visit the place and persons who occupied said two houses, constantly and habitually used said crossing, and said usage was acquiesced in and approved by said defendant company. * * * that a short while before plaintiff's intestate was killed, he went across said crossing, and while returning and going in an eastern direction and while operating his car in a careful and prudent and very slow manner, he came up an incline to come back into the road which leads across said crossing, and at a point about 40 feet from the western rail of the main line track, he made a slight left turn to cross said tracks and at said place the road was very rough, and plaintiff's intestate was driving very slowly, and immediately to the right of plaintiff's intestate was a bank about 6 feet in height, undergrowth, bushes, and numerous small pines, which obstructed his view of the crossing; that when plaintiff's intestate straightened out in said road to cross said crossing, and while traveling in an eastern direction at a point about 30 feet from said western rail of said main line track, there is a bank extending up about 6 feet in height from said road, and undergrowth, trees, and bushes with leaves and foliage on them, all of which obstructed the view on plaintiff's intestate's right, and to the left of plaintiff's intestate, at said time and place, there were bushes undergrowth, and trees, all of which said bushes undergrowth, trees, and bank as aforesaid were on the right of way of the defendant company; that at said point, behind said bank, trees, and undergrowth, plaintiff's intestate could not see down the track in the direction of Winston-Salem, North Carolina, but that plaintiff's intestate listened and heard no approach of said train or the ringing of bell or the blowing of said whistle of said locomotive or engine; that plaintiff's intestate continued to travel in an eastern direction, and after looking in both directions and listening at a place where plaintiff's intestate could see up and down the tracks of the defendant, the plaintiff's intestate drove his said car very slowly across the side track and after crossing the said track immediately drove his car onto the main track, and as his car crossed the western rail of the main track, the said car dropped down between said rails of the main track and stopped, and without any warning or signals, a locomotive or engine of the defendant company and operated by the defendant's engineer negligently struck said car demolishing the same and killing plaintiff's intestate; that it was about 5 feet from the front of plaintiff's intestate's car to the place where he was sitting, and that as plaintiff is advised, informed, and believes, the locomotive or engine overhangs the rail about 2 1/2 or 3 feet, and by reason thereof, the distance between the western rail of the defendant's main line track and the undergrowth and trees was greatly shortened; that at said crossing, between the rails of the main line track in the direction plaintiff's intestate was traveling, there is a sharp incline, and the ballast between the rails on said main line track was several inches below the top of the rails and by reason thereof, when plaintiff's intestate slowly drove the front wheels of his said car over the western rail of said main line track, his said car dropped down between the rails, and without any fault on his part, stalled; that the ballast on said crossing between the rails of said main line track was just barely above the top of the cross ties and plaintiff's intestate's front wheels dropped several inches when they crossed said western rail; that at said crossing there is a very sharp curve on said railroad and right of way, and said crossing is practically at the apex of said curve, and that at said crossing and curve, the tracks of the defendant company are very materially sloped, and that in traveling in the direction in which the plaintiff's intestate was traveling, at the time he was killed, there is a sharp incline both on said crossing and between said rails; that as plaintiff is advised, informed, and believes, the right of way of the defendant company has been burned off since September 25, 1935, and the bushes, undergrowth, and pine trees have been cut down; that at said crossing...