Dillon v. City of Winston-Salem

• Decision Date: 24 June 1942
• Docket Number: 752.
• Citation: 20 S.E.2d 845,221 N.C. 512
• Parties: DILLON v. CITY OF WINSTON-SALEM et al.
• Court: North Carolina Supreme Court

20 S.E.2d 845

221 N.C. 512

DILLON v. CITY OF WINSTON-SALEM et al.

No. 752.

Supreme Court of North Carolina

June 24, 1942

Civil action to recover for alleged wrongful death. C.S. § 160, as amended by Pub.Laws 1933, c. 113; § 161.

Evidence offered by plaintiff and clicited from her witnesses in the trial court tends to show these pertinent facts:

Henry Lee Dillon, nineteen years of age, intestate of plaintiff came to his death about 7:30 o'clock on Sunday night, 22 December, 1940, when the Ford automobile, 1931 coach, owned by the father of, and operated by, Charles W. Cranford, in which Dillon, two other boys and a girl were riding, ran into a dirt bank located east of the end of the pavement on Devonshire Street and on west side of the main line tracks and east of side tracks of defendant Winston-Salem Southbound Railway Company, in the City of Winston-Salem, North Carolina. At that time the driver of the Ford, then fourteen years of age, but approaching his fifteenth birthday, 18 February, 1941, had a driver's license, obtained by him through misrepresentation of his age.

Devonshire Street originally appeared on plat of property of Winston-Salem Land and Investment Company, filed for record in March, 1892, and registered in Register's office of Forsyth County, North Carolina. The plat covered land at, but then outside of, the corporate limits of the city of Winston-Salem, subdivided into blocks and lots, and streets and alleys. As shown on this plat, Devonshire Street runs east and west and extends from Sunnyside Avenue on the west to Lexington Street on the east, intersecting Vargrave Street and Glendale Avenue, which run north and south. Glendale Avenue, as shown, is the first street west of Lexington Street, which runs in slightly northwest and southeast course. Sprague Street is shown as the first street north of, and parallel to Devonshire Street, and Goldfloss Street is the first south thereof and parallel thereto.

Between the years 1893 and 1906 the owners of said property sold and conveyed lots with reference to this plat, and Devonshire Street was during that period used as public way for traveling on foot, and by horse and buggy and wagon. And, in 1906, defendant Winston-Salem Southbound Railway Company bought from the then owner, and with reference to said map all the lots in the two blocks fronting on Devonshire Street west of Lexington Street and east of Glendale Avenue, except those representing two hundred fifty feet frontage on each side next to Glendale Avenue.

Thereafter, about 1909, defendant Railway Company constructed a railroad north and south across said subdivision and the land so purchased by it, and across Devonshire Street as represented on said plat. As so constructed the main line of the railroad cut across and below the former surface level of land covered by Devonshire Street, as so represented. The Railway Company also built a passenger and freight station on said property south of Devonshire Street as so represented, and west of its main line tracks. It also constructed and laid two side tracks on said property, west of the station and across Devonshire Street as so represented. Access to the station was provided from Devonshire Street and over the side tracks and then south over a dirt service road located between the tracks of the main line, and the side tracks. But no way was provided there for crossing the main line, and Devonshire came to a "dead-end" at that point.

Thereafter, in 1923, the territory along Devonshire Street, west of Lexington Street, including the land purchased by defendant, Railway Company, in 1906, as above stated, was taken into the corporate limits of defendant city. Thereupon, defendant city laid pavement and curbing on Devonshire Street including that section east of east curb line of Glendale Avenue down to a point 1.7 or 1.8 feet west of the west side track of defendant Railway Company, a distance of 332.9 feet. At that time, defendant Railway Company conveyed to defendant city a strip of land referred to as being fifty feet wide, along the west boundary of its land, purchased as above stated, extending from Sprague Street south to and across Devonshire Street to Goldfloss Street, on which defendant city constructed a street, which is referred to as the unnamed street. Traffic going east on Devonshire may turn to left there and reach Sprague Street on which there is an overhead bridge across the railroad, or may turn to right down the railroad toward Goldfloss Street. This pavement on Devonshire Street, thirty feet wide, extends across the intersection of that street and the unnamed street, and then on east for approximately 21.5 feet, that is, approximately 71.5 feet east of the west line of the strip of land so conveyed to defendant city by defendant Railway Company, and the same distance, 71.5 feet, east of the west line of said intersection, and from end of this pavement, east across the side tracks and the road leading into the railroad station, to the ditch where the Ford automobile ran into the embankment of ditch on west bank of main line tracks, the distance is 56.7 feet.

On the night of the accident here involved, there was a lighted street light located over, and approximately in the center of the paved area, and twenty four feet east of the west line of intersection of Devonshire Street and the unnamed street, and 49.3 feet west of the west rail of the west side track, that is, more than 100 feet west of the said ditch bank.

Devonshire Street, east from Glendale Avenue, is down hill to its intersection with the unnamed street. There "it flattens out", "levels out" and ?7Fis practically level". And between the intersection and the point of approach to side tracks, the slope is slightly downward. From that point there is a dirt and cinder roadway over the side tracks, down into the railroad yard. The dirt approach to side tracks, overlapping the pavement irregularly but in the center beginning seven feet from the west rail, rises on eleven per cent grade. Over the tracks the road is "very nearly level", though slightly lower on east side.

The bank on the east side of main line tracks at the point in question is higher, and extends two feet above the level of the side tracks.

Charles W. Cranford, as witness for plaintiff, testified substantially as follows: That on night of 22 December, 1940, he was driving his father's Ford coach; that three boys, including Henry Lee (Pete) Dillon, whom he did not then know, joined him in northern section of Winston Salem; that they "picked up a girl", and then rode through the city to Southside "to see some young ladies"; that Dillon said that "he had a girl friend out there he wanted to go see"; that he, Dillon, directed the course of the automobile, and they stopped at intersection of Glendale Avenue and Devonshire Street, and Dillon exchanged seats and got on front seat; that he, the driver, had not been there before, and, in his words, "Pete told me to let him get up in front so that he could show me where he wanted to go"; that then they started east on Devonshire Street; that the street looked like a straight, through street; that there were street lights over "on the old Lexington Highway", and coming down Devonshire at night it looked like a dark block in between; that he pushed the clutch in and the car was out of gear all the way, coasting down hill; that he, Cranford, "did not know that the railroad crossed there"; that the street light at intersection with the unnamed street, using his words, "caused a glare on the windshield and blinded me, looking into the dark"; that the first time he observed that the pavement ended there was when, as he said, "We hit the railroad-spur tracks *** traveling approximately twenty five or thirty miles an hour"; that, again quoting, "When I hit the railroad track, I lost control of the car *** It threw me through the top, and I had no control of it *** my car stopped against the bank, below the spur tracks"; and that the lights and brakes on his car were in good condition.

The witness continuing upon cross examination as to light blinding him, said: "I don't remember where my car was when the glare of the street light blinded me. It was approximately around the street light somewhere, close to the street light, as I was going towards the street light *** Before I got to that street light, the glare of it blinded me. I did not make an effort to stop the car at the time. I kept on driving, although I was blinded at the time by the glare of the street light". Then, again: "The cause of this accident was not altogether being blinded by that light. There was nothing to prevent me from stopping my car *** I didn't try to stop because you could see on the side of the street. I was blinded and couldn't see straight ahead *** I didn't stop my car or make an effort to stop, but just went on in the darkness, not being able to see a thing, and not seeing a thing until after the car stopped."

Then continuing, on cross examination, regarding directions by Dillon, the witness testified: "He got on the front seat because he was directing me where to go. He directed me where to go as I started on Devonshire Street *** He did not tell me where the girl friend lived *** He just told me where to turn from time to time as we went out in that direction. He had given me directions *** before he got on the front seat *** He was directing me which way to go and I was going under his direction, and driving the car as he told me to drive *** going the way he told me to go. He knew exactly how I was driving the car"; and also said: "I do not know in which direction Pete was looking at or immediately before the accident".

This witness further testified that "just before the...