Coltrain v. Atlantic Coast Line R. Co.

• Decision Date: 11 October 1939
• Docket Number: 99.
• Citation: 4 S.E.2d 853,216 N.C. 263
• Parties: COLTRAIN v. ATLANTIC COAST LINE R. CO. et al.
• Court: North Carolina Supreme Court

4 S.E.2d 853

216 N.C. 263

COLTRAIN v. ATLANTIC COAST LINE R. CO. et al.

No. 99.

Supreme Court of North Carolina

October 11, 1939

This is an action for actionable negligence brought by plaintiff against defendants alleging damage.

The evidence on the part of plaintiff tended to show that defendant Railroad operated trains over its tracks from Plymouth to Rocky Mount, N. C. On the day of the alleged injury, March 6, 1937, between 1:00 and 2:00 o'clock on Saturday afternoon, in the day-time, an engine of defendant pulling 14 cars struck plaintiff at a highway crossing on a dirt road and permanently injured him--his back was broken in three places, a fracture of the tenth thoracic vertebrae and fractures of the first and third lumbar vertebrae with paralysis of his bladder and rectum. Before the injury he had been in perfect health and a good worker.

Nathaniel Coltrain, the plaintiff, a young man 17 years of age, lived near where the injury occurred, with his father. He was driving a one and a half ton truck, 1934 model Chevrolet loaded with boards. He testified, in part:

"I was driving carefully about twenty-five to thirty miles per hour along the State Highway. No one was in the truck but me. To get to the Sykes place you have to turn off of the highway on a dirt road. The dirt road is about half a mile from Gardner's Creek bridge. At this point the highway turns sharply to the left leaving the railroad track. Before reaching that point the highway and railroad track are practically parallel for some distance. *** About thirty days before I was injured some timber had been cut in those woods. The pine tops were laying over to the right towards the railroad. They were lying right close to the track.

"Q. How close did they extend to the rail of the track, the iron rail? A. They hung over the right of way about four feet or a little further. There were four, five, six or eight of the pine tops. They were large tops. At the time I was injured the pine needles were still on those tops.

"Q. What effect did that have upon your ability to see a train coming down that track from the direction of Plymouth? A. You couldn't see it at all. The railroad track in going from Plymouth towards Williamston crosses Gardner's Creek. Coming from Plymouth the railroad goes down grade until it gets to Gardner's Creek and then it comes up grade to where this crossing is. It is graded down below the surface of the land. It is graded down about six feet.

"Q. What effect does that have on the ability or did it have on your ability to see a train coupled with that obstruction you have just described? A. I couldn't see it. The railroad comes up a rather steep hill for this part of the country. When I got to the dirt road I turned off to go to the Sykes place. When I turned off I had to come to a stop to make my turn. That was because of the acuteness of the angle of the road and the road being levelled up that way. I came to a stop to make the turn. There was much traffic on the highway that day. It was Saturday. From the edge of the highway it is about 30 feet down the dirt road to the railroad track, that is from the edge of the highway to the rail of the track. As I made the stop and started again I put it in low gear. I did not change gears before I got to the railroad track. My truck was moving about five miles per hour. I remember after I got to the railroad track but after the train hit me I don't remember anything else. Just as my truck got to the railroad track the train hit me. It was a freight train.

"Q. Did that train blow? A. No, sir.

"Q. Did it ring any bell? A. No, sir.

"Q. Did it give any warning of any kind? A. No, sir. As I turned off the highway to go down that dirt road I looked and listened both for the train. As I went towards the railroad track I was driving carefully and looking and listening. One of the windows of my truck cab was broken out and the other was cranked down. Both of them were down.

"Q. Could you have heard that train if it had blown or rung a bell? A. Yes, sir."

On cross-examination, he testified:

"The brakes on the truck were in good condition. There was no trouble about my stopping. When I made the turn I stopped there long enough to put it in low gear. Been operating a car all my life. You have to go slower on a truck to change gears than on a car. After I turned I stopped and looked and listened.

"Q. Where did you stop? A. About half way from the highway to the track.

"Q. You say you made the turn in low gear, drove half way from the concrete to the railroad and there came to a complete stop? A. Yes, sir, and looked.

"Q. You came to a complete stop half way between the concrete and the railroad? A. Yes, sir.

"Q. And there you looked? A. Yes, sir.

"Q. Which way did you look? A. Towards Plymouth and Williamston both.

"Q. Then you started up? A. Yes, sir.

"Q. Did you ever look again? A. Looked about the time the train hit me. I saw that.

"Q. And you never looked until just as the train was hitting you? A. There wasn't but a mighty short time to look or do anything.

"Q. You didn't look again until you looked up and ran right into the train? A. I didn't run into the train.

"Q. Well, the train ran into you? A. Yes, sir.

"Q. How far were you from the track when you stopped? A. I was about half way.

"Q. How far is that? A. I said around thirty feet. That would leave fifteen feet from the track.

"Q. Did you tell the jury you stopped fifteen feet from the track? A. I said around fifteen.

"Q. Was it fourteen or fifteen? A. I didn't measure it.

"Q. Your best estimate is you stopped fifteen feet from the track? A. Yes, sir.

"Q. Came to a complete stop? A. Yes, sir.

"Q. How long did you stay stopped there? A. I don't know. I didn't look at my watch.

"Q. Half a second? A. Long enough to look and listen.

"Q. How long did you look and how long did you listen? A. I looked both ways.

"Q. How long did you stop at a complete stop? A. Around half a minute.

"Q. And then drove on and didn't look again until you saw the train right on top of you? A. I looked both ways and didn't see it and I just pulled right on off and about that time--

"Q. You told the jury you were fifteen feet or thereabouts from the track when you came to a complete stop and looked and listened? A. Yes, sir.

"Q. You started off in low gear going about five miles an hour? A. Yes, sir."

J. H Coltrain testified, in part:

"There were no warning signs of any kind on that dirt road between the highway and the crossing. Prior to the time the boy was hurt there had been eight pine trees cut in there. There was also some small stuff but I don't know what it was. There were eight pines measuring from twenty-two inches to twenty-eight inches on the stump. Some of those tops were laying on the shoulder of the railroad and some up and down the shoulder. The needles were on those tops then. The tops had been there about thirty days from the looks of the straw. It had just started dying. I don't hardly know but I should think those tops were piled some six or eight feet close to the bank of the ditch beside the cross-ties of the railroad.

"Q. What effect did those tops have on the ability of a man driving along that dirt road from the highway towards the railroad track to see a train on the track? A. You practically couldn't see anything until you got right on the track. Leaving Gardner's Creek the railroad goes through a field first and then strikes the woods and goes up a hill through the cut and goes out of the cut just as it gets to this road crossing. I don't know how deep the cut is but in some places it is deeper than others. Some places eight feet and some a foot and a half to two feet at the road. It is different depths. The deepest point is down near the creek. It is deeper where it first starts in the hill and comes out of the hill right at the road crossing about six feet before you get to the road crossing. * * I was at the scene of the accident last week. The tree tops are not now like they were at the time of the injury. They are burned up."

Wendell Griffin testified, in part:

"Part of the tops hung over the right of way and part were still in the woods. Those tops had been there thirty or forty days before the accident. The straw was turning brown. The tops extended about half way from the bank to the cut down ground.

"Q. What effect did those tops have on a man driving down the highway and turning in the dirt road seeing a train approaching from the direction of Plymouth? A. Cut the complete view off of that dirt road.

"Court Cut the complete view of the railroad off? A. Yes, sir, till you got pretty close to the track. When you got to the track you could see down the railroad. You would have to get around eighteen or twenty feet, sixteen or eighteen feet of the rail before you could see. Those tops were dense enough that you could not see a train through them and high enough that you couldn't see over them. In addition to the tops the train came through a cut around four or four and a half feet, I should imagine, coming up grade through a cut. Naturally, the lower the train was the less view a man would have above the ground to see. With the pine tops it would make it harder to detect that a train was coming. I know that the point of woods has been burned over since this accident. The tops were there then and they are gone now."

Clarence Wallace testified, in part:

"The train and myself both left Jamesville about the same time not much difference. I could see the smoke all along in open places. I didn't see the train after it crossed Gardner's Creek. I saw the smoke.

"Q. Have you an opinion satisfactory to yourself about how fast that train was running? A. It was bound to have been running around fifty...