Coleman v. Atlantic Coast Line R. Co.

• Decision Date: 02 November 1910
• Parties: COLEMAN v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

69 S.E. 251

153 N.C. 322

COLEMAN v. ATLANTIC COAST LINE R. CO.

Supreme Court of North Carolina

November 2, 1910

Appeal from Superior Court, Columbus County; Ferguson, Judge.

Action by Henry Coleman against the Atlantic Coast Line Railroad Company. judgment for plaintiff, and defendant appeals. Reversed.

Plaintiff injured at a railroad crossing held guilty of contributory negligence.

The following issues were submitted: (1) Was the plaintiff injured by the negligence of the defendant as alleged in the complaint? (2) Did the plaintiff by his own negligence contribute to his own injury? (3) What damage is the plaintiff entitled to recover? The jury answered the first issue, "Yes," the second issue, "No," and the third issue, "$4,000." From the judgment rendered, defendant appealed.

Junius Davis and J. B. Schulken, for appellant.

McIntyre Lawrence & Proctor and David J. Lewis, for appellee.

BROWN J.

The plaintiff was injured while in the act of crossing defendant's track driving a horse and buggy at a public crossing at Fair Bluff, by coming in collision with a rapidly moving engine and train.

Upon his examination in chief, plaintiff, after testifying that after he had turned out from the road to the right to cross track, said: "I don't know how far I went, but I stopped, looked, and listened to see if any train was coming." Plaintiff further stated: "After I stopped, looked, and listened, and heard nothing, I started off in a slow walk, and did not know there was a train coming until I got on the track, and, when I saw it, it was in 10 feet of me." Upon cross-examination plaintiff goes more into detail and states definitely when and where he looked and listened. He says that, after he got into the road that led to the crossing, he stopped, looked, and listened to see if any train was coming, and heard nothing; that the view from where he stopped was obstructed by three or four houses but that when he got to the right of way he could see some distance up or down the track. Plaintiff further stated that there was nothing on the right of way to obstruct his view that the edge of the right of way was 65 feet from the center of the track; that after he got on the right of way he could see up the track in the direction the train was coming one-quarter of a mile; that he did not look for the train after he got on the right of way, for he had looked before and thought if the train was coming he could hear it; did not think he was on the right of way when he stopped, looked, and listened; if he had looked after he got on the right of way he might have seen it; was riding in a buggy with the curtains buttoned down both sides and back.

N. A McQueen testified that he heard the train blow some distance up the road, probably a mile; heard the danger signal given; and heard the roar of the train.

E. R. Connor testified that the edge of the right of way was 60 or 65 feet from the track; that, after Coleman got to the right of way, there was nothing to prevent his seeing the train, as the view was unobstructed, and he could see the train three-quarters of a mile off; he heard the train signal, heard the train roaring, and saw it coming.

Defendant introduced no evidence.

In view of the great number of uniform decisions by this court bearing upon this question, it would seem to be plain that his honor erred in denying defendant's motion. "Travelers upon a common highway which crosses a railroad, and the company running its trains, have mutual and reciprocal duties and obligations." Thompson on Negligence, 1604, 1605. From its very nature, and for public convenience, the train has the right of way; but the law imposes upon the engineer the duty to give signals and to exercise vigilance in approaching crossings in order to avoid injury. The law imposes an equal duty upon the traveler when he reaches a crossing, and before attempting to go on the track, to both look and listen for approaching trains, for the traveler by doing so, if there is nothing in his way, can most certainly prevent a collision and save himself from harm. When he reaches the track, it is no great hardship imposed upon the traveler to require him to exercise ordinary prudence and to cast his eye up and down the track. By so doing he has the last and most certain chance to prevent collisions and to save himself as well as the train, its crew and passengers, from possible injury.

In respect to cases of collision at crossings, Judge Thompson says: "The leading rule is that there can be no recovery of damage where the negligence of the traveler contributed proximately to the injury, although the railway company was also guilty of negligence." Negligence, § 1605. A railroad crossing is itself a notice of danger, and all persons approaching it are bound to exercise care and prudence, and, when the conditions are such that a diligent use of the senses would have avoided the injury, a failure to use them constitutes contributory negligence and will be so declared by the court. Mr. Beach says: "In attempting to cross the traveler must listen for signals, notice signs put up as warnings, and look attentively up and down the track; and a failure to do so is contributory negligence which will bar a recovery. A multitude of decisions of all the courts enforce this reasonable rule." There are of course exceptions to this, as well as most other rules; but, where the traveler "can see and won't see," he must bear the consequences of his own folly. His negligence, under such conditions, bars recovery because it is the proximate cause of his injury. He has the last opportunity to avoid injury and fails to take advantage of it.

This is the law as laid down by practically all the appellate courts in this country as well as by the Supreme Court of the United States. The case of Northern Pacific R. R. v Freeman, 174 U.S. 379, 19 S.Ct. 763, 43 L.Ed. 1014, is a case "on all fours" with this. The two cannot be...