Cline v. Southern Ry. Co.

• Decision Date: 15 November 1940
• Docket Number: No. 4695.,4695.
• Citation: Cline v. Southern Ry. Co., 115 F.2d 907 (4th Cir. 1940)
• Parties: CLINE v. SOUTHERN RY. CO.
• Court: U.S. Court of Appeals — Fourth Circuit

115 F.2d 907 (1940)

CLINE v. SOUTHERN RY. CO.

No. 4695.

Circuit Court of Appeals, Fourth Circuit.

November 15, 1940.

John J. Henderson, of Burlington, N. C., for appellant.

Russell M. Robinson, of Greensboro, N. C. (W. T. Joyner, of Raleigh, N. C., on the brief), for appellee.

Before PARKER, SOPER, and NORTHCOTT, Circuit Judges.

NORTHCOTT, Circuit Judge.

This is an action instituted in the Superior Court of Guilford County, North Carolina, by the appellant, Mrs. Ruby Cline, administratrix of H. H. Cline, deceased, her husband, here referred to as the plaintiff, against the appellee Southern Railway Company, here referred to as the defendant, for the recovery of damages for the alleged wrongful death of her husband.

The action was removed by the defendant to the United States District Court for the Middle District of North Carolina, at Greensboro. A trial was had before a jury in February, 1940, and a verdict returned in favor of the plaintiff for the sum of $5,250. The verdict was set aside by the trial judge who filed a written opinion holding that under the evidence as a matter of law the deceased had been guilty of contributory negligence. Judgment was entered for the defendant and the plaintiff brought this appeal.

On December 6, 1938, the plaintiff's intestate and two of his employees were riding in a truck, owned by him, over a crossing of the Southern Railway tracks just west of the corporate limits of the City of High Point. The following facts were stipulated: that at the crossing where the accident occurred the defendant has three railroad tracks, a spur track and main southbound track and main northbound track; these tracks run in a northeast direction toward High Point from this crossing and the highway either known as the Old Thomasville Road or the Allentown Road crosses these three tracks in a southeasterly direction, and that at the time that the plaintiff's intestate was killed he was travelling in a truck going in a southeasterly direction so that he came first to the spur track, the centre of which is 15½ feet from the centre of the main southbound track and that he crossed the track and that it was 13 feet from the centre of the main southbound track to the centre of the main northbound track, the track on which the collision occurred; that on the southwest side of the highway 15 feet from the centre of the spur track the defendant has an electric signal sign; that the train that collided with the truck was on the northbound track and was going towards High Point; that at a point before plaintiff's intestate reached the spur track 35½ feet northwest of the centre of the spur track, the view of the three tracks is clear from any obstruction and that from the same point the view is unobstructed for 152 feet to the centre of the northbound track, which is located at a point 140 feet from the point of collision; that when the deceased reached a point 63 feet 11 inches from the centre of the furtherest track where the collision occurred, he could have seen down in the direction from which the train was coming for 152 feet, and from that point up to the crossing is a distance of 140 feet; that to his right as he approached the crossing there was a bank which partially obstructed the view to his right; and that at a point 105 feet down the railroad track along the northbound track toward Thomasville it is 24 feet from the centre of that track across the other tracks to the bottom of the bank and it is 38 feet from the centre of the northbound track to the top of that bank, but that the elevation of the bank is 4-4/10 feet above the elevation of the railroad track; and that at a point 205 feet down the railroad track from the point where the collision occurred it is 24 feet from the centre of the northbound track to the bottom of the same bank and 38 feet from the centre of that northbound track to the top of the bank but the elevation of 8-9/10 feet higher than the railroad track.

There was evidence on behalf of the plaintiff to the effect that the signalling device was not indicating the approach of any train and was out of order, and, that the driver of the truck proceeded to cross the track and the truck was struck by a northbound train and the three men were killed. The train which struck the truck was an extra train, not running on regular schedule. The train was evidently traveling at a high rate of speed and did not stop after the collision for at least one half a mile.

There was evidence on behalf of the plaintiff to the effect that no whistle was blown or bell rung by the train on approaching the crossing. There was a sharp conflict in the evidence as to the condition of the signalling...