Cox v. Gallamore, 30

• Decision Date: 16 June 1966
• Docket Number: No. 30,30
• Citation: 148 S.E.2d 616,267 N.C. 537
• Parties: Larue B. COX, Administrator of the Estate of Janet Gail Cox, Deceased, v. Lloyd D. GALLAMORE, Jr., and Norfolk Southern Railway Company.
• Court: North Carolina Supreme Court

Page 616

148 S.E.2d 616

267 N.C. 537

Larue B. COX, Administrator of the Estate of Janet Gail Cox, Deceased, v. Lloyd D. GALLAMORE, Jr., and Norfolk Southern Railway Company.

No. 30.

Supreme Court of North Carolina.

June 16, 1966.

J. W. Clontz, High Point, and Wilton F. Walker, Currituck, for plaintiff appellant.

J. Kenyon Wilson, Jr., and John H. Hall, Elizabeth City, for defendant Railroad, appellee.

Leroy, Wells & Shaw, Elizabeth City, for defendant Gallamore, appellee.

LAKE, Justice.

In passing upon the motion for judgment of nonsuit, the evidence of the plaintiff must be taken as true and must be interpreted in the light most favorable to the plaintiff. All reasonable inferences favorable to him must be drawn therefrom. Contradictions or inconsistencies, if any, in his evidence must be resolved in his favor.

The judgment of nonsuit could be affirmed on the ground of contributory negligence by the plaintiff's intestate only if his own evidence, so considered, leads inescapably to the conclusion that she was negligent and thereby contributed to her own injuries. There being no such evidence in the record before us, the judgment cannot be sustained on that ground.

G.S. § 136--20, which empowers the State Highway Commission, under certain circumstances, to require a railroad company to install gates, alarm signals or other safety devices at a crossing, does not relieve the railroad from its common law duty to give users of a highway adequate warning of the existence of a grade crossing at which the Commission has not required such devices to be installed. State Highway Commission v. Clinchfield R.R., 260 N.C. 274, 132 S.E.2d 595.

A railroad crossing is, in itself, a warning of danger to a driver who knows of it or who, by keeping a reasonable lookout as he drives along a highway, could discover its existence in time to stop his vehicle before entering the path of a train proceeding over the crossing. Ramey v. Southern R.R. Co., 262 N.C. 230, 136 S.E.2d 638; Stevens v. Southern R.R. Co., 237 N.C. 412, 75 S.E.2d 232. On the other hand, one driving upon a highway is not required to assume that he will come upon an unknown, unmarked railroad crossing at grade level which is not discoverable by keeping a reasonable lookout in the direction of his travel. It is the duty of the railroad to give to users of the highway warning, appropriate to the location and circumstances, that a railroad crossing lies ahead. Davidson v. Seaboard Air Line R.R. Co., 170 N.C. 281, 87 S.E. 35; Stephenson v. Grand Trunk Western R. Co., 110 F.2d 401, 132 A.L.R. 455; 75 C.J.S. Railroads § 768b; 44 Am.Jur., Railroads, § 558; Annot., 40 A.L.R. 1309. In 44 Am.Jur., Railroads, § 528, it is said:

'A traveler's ignorance of the existence of a railroad crossing does not impose any additional duty on a railroad company in the operation of its trains, but the company may, by its omission of some duties, subject itself to a liability for injury to one ignorant of a crossing, where it would not be liable if he knew thereof. One of these is the duty to give appropriate warning to persons using the highway of the presence of railroad crossings. The manner in which this duty shall be discharged varies according to the circumstances and surroundings, and ordinarily it is a question for the jury whether the duty in a particular case has been sufficiently performed. This is usually done by means of sign boards at or near the crossing indicating the presence of the crossing, and these are frequently required by statute.'

Even though the railroad has posted signs which are adequate to give a traveler upon the highway notice of the presence of a railroad crossing, it is also the duty of the railroad to give timely warning of the approach of its train to the crossing by the blowing of the whistle or horn, by ringing the bell or by some other device reasonably calculated to attract the attention of those approaching the crossing upon the highway. Johnson v. Southern R.R. Co., 255 N.C. 386, 121 S.E.2d 580, 90 A.L.R.2d 344; Irby v. Southern R.R. Co., 246 N.C. 384, 98 S.E.2d 349, 70 A.L.R.2d 1; Caldwell v. Southern R.R. Co., 218 N.C. 63, 10 S.E.2d 680; Moseley v. Atlantic Coast Line R.R. Co., 197 N.C. 628, 150 S.E. 184; Hill v. Norfolk Southern R.R. Co., 195 N.C. 605, 143 S.E. 129; Blum v. Southern R.R. Co., 187 N.C. 640, 122 S.E. 562; Johnson v. Seaboard Air Line R.R. Co., 163 N.C. 431, 79 S.E. 690; Hinkle v. Richmond & D.R.R., 109 N.C. 472, 13 S.E. 884.

In the Hinkle case, Avery, J., speaking for the Court, said:

'In the absence of statutes regulating the time and manner of giving signals, the failure of an engineer in charge of a locomotive to ring the bell or sound the whistle on approaching the crossing of a public highway * * * is evidence of negligence to be submitted to the jury. (Citations omitted.)

'It is negligence Per se * * * to omit to give, in reasonable time, some signal from a train moving * * * when it is hidden from the view of travelers, who may be approaching and in danger of coming in collision with it, by the cars of the company left standing on its track, or by an embankment, a cut, or a sharp curve in its line, or by any other obstruction allowed to be placed or placed in any way by the company. (Citations omitted.)

'Where a railroad company has erected a whistle post at a proper distance from a crossing in order to notify engineers when to give timely warning of the approach of a train to persons using the intersecting highway, and the purpose of the company is known to the public, so that persons generally are led to act on the supposition that a signal will be given at the post, it is also negligence on the part of the company, if the engineer fail to sound the whistle at the point so indicated, in passing with a freight or...