Chambers v. Winston-Salem South Bound R. Co.

• Decision Date: 05 November 1930
• Docket Number: 362.
• Citation: 155 S.E. 571,199 N.C. 682
• Parties: CHAMBERS v. WINSTON-SALEM SOUTH BOUND R. CO. et al.
• Court: North Carolina Supreme Court

155 S.E. 571

199 N.C. 682

CHAMBERS v. WINSTON-SALEM SOUTH BOUND R. CO. et al.

No. 362.

Supreme Court of North Carolina

November 5, 1930

Appeal from Superior Court, Forsyth County; Clement, Judge.

Action by O. L. Chambers, administrator of the estate of O. L Chambers, Jr., deceased, against the Winston-Salem South Bound Railroad Company and another. From a judgment granting motion of defendant named for judgment as in case of a nonsuit, plaintiff appeals.

Affirmed.

This was an action for actionable negligence brought by plaintiff administrator of his son, against defendants.

Among other defenses, the defendant Winston-Salem South Bound Railroad Company says: "That there was no unity or concert of action, on the state of facts, as alleged by plaintiff in his complaint, between Winston-Salem South Bound Railroad Company and Richard Jones, defendants herein; that the acts of Richard Jones were the criminal acts of an independent third party, unexpectable and unforeseenable by this defendant, completely insulating any other negligent act, if any, which are expressly denied, and solely and proximately causing the injuries complained of by plaintiff and, that such acts on the part of Richard Jones are entirely separable from any other acts, complained of by plaintiff."

On February 12, 1928, about 3 o'clock p. m., the plaintiff's intestate, a lad 10 years of age was standing about 10 feet of West street crossing, in the city of Winston-Salem, N. C., on the sidewalk on the west side of the crossing. He was about 10 feet west of the railroad track. He was struck from the rear by an automobile driven by Richard Jones, the defendant, and knocked under the train and killed.

The plaintiff's witness, Edith Dudley, testified in part as follows: "On the afternoon of this collision, about three o'clock, I was on the porch, standing in the door and I saw the train approaching this intersection and saw the automobile in which Richard Jones was driving approaching the intersection from the West. In my opinion, when the automobile had reached a point some fifty feet from the railroad track it was going between thirty and thirty-five miles an hour. In my opinion, when the train was within fifty feet of the crossing, it was coming at about twenty miles an hour. I couldn't hardly say how far south of West Street the train was when the automobile was fifty feet away from the crossing, but I think if the Jones boy had not turned off they would have just about met, but by him turning off he hit the rear of the engine, the best I could see. I mean that if the automobile had come straight on they would have gotten there at the same time. I didn't hear the bell on the train ringing and I didn't hear the signal bell at the crossing ringing. *** When the Jones boy's car got below the Perryman Lumber Company's building there was nothing to obstruct his view. The Jones boy's car didn't slack its rate of speed much, if any, and when it got down almost to where the train was, it whirled and knocked the little Chambers boy under the train. The Chambers boy was on the sidewalk, about ten feet from the track, and he struck the Chambers boy going between thirty and thirty-five...