Dowdy v. Southern Ry. Co.

• Decision Date: 15 April 1953
• Docket Number: No. 237,237
• Citation: 75 S.E.2d 639,237 N.C. 519
• Court: North Carolina Supreme Court
• Parties: DOWDY, v. SOUTHERN RY. CO., Inc. et al. BOBBY BURNS, Inc. et al. v. SOUTHERN RY. CO., Inc. et al.

Page 639

75 S.E.2d 639

237 N.C. 519

DOWDY, v. SOUTHERN RY. CO., Inc. et al.

BOBBY BURNS, Inc. et al. v. SOUTHERN RY. CO., Inc. et al.

No. 237

Supreme Court of North Carolina.

April 15, 1953

Pittman & Staton and Gavin, Jackson & Gavin, Sanford, for plaintiffs, appellants.

W. T. Joyner, Raleigh, Teague & Williams, Sanford, and H. E. Powers, Raleigh, for defendants, appellees.

PARKER, Justice.

The plaintiffs' assignments of errors Nos. 1 to 4, both inclusive, which relate to questions asked witnesses by plaintiffs' counsel, objected to by the defendants, and not answered, have not been set out in the plaintiffs' brief. They are deemed abandoned. Rule 28 Rules of Practice in the Supreme Court; Dillingham v. Kligerman, 235 N.C. 298, 69 S.E.2d 500.

The remaining assignments of errors Nos. 5 and 6 are founded on exceptions challenging the rulings of the Court below in allowing the motions for judgments as of nonsuit against all the plaintiffs, and judgments signed in accord therewith.

There is no allegation in the plaintiffs' complaints or replies that the view of the railroad tracks was obstructed from the gate at the Gulf Plant to the railroad track, nor any evidence to that effect. The tank car on the sidetrack is not mentioned in the plaintiffs' pleadings. The plaintiffs offered two witnesses who testified as to the distance from the gate to the track. Dowdy said it was approximately 25 or 30 feet; Rhine said it was 47 feet and 9 inches by actual measurement from the outside of the rosebush at the gate to the railroad track. The tank car on the sidetrack was on the opposite side of Dowdy from the approaching train. Dowdy testified that after you get out of the gate good you can see up the track to the West, from which the train was coming a distance of about 900 yards. The track in that direction was straight. The time was about 9:35 a. m. The weather, as admitted in the pleadings, was clear and fair. Dowdy knew of the railroad track; he had crossed it twice a day, six days to the week, for three months. Dowdy drove his tractor out of the gate without stopping onto the railroad crossing, a place of danger. He looked to the left; when he looked to the right his tractor was upon the tracks, and he saw the approaching train 300 to 400 feet away.

Conceding the existence of negligence on the part of the defendants, which they strenuously deny, this case is controlled by the fact that Dowdy drove his tractor and oil tanker upon the railroad crossing in the face of an on-coming train, which he could have seen in the exercise of ordinary care, if he had looked to the right while he was travelling according to his testimony 25 or 30 feet from the gate to the railroad crossing, or according to actual measurement taken by his witness Rhine 47 feet and 9 inches. If Dowdy had looked to his right while travelling this distance, he could have seen the train and avoided injury. This negligence on Dowdy's part contributed to the injury and damage of all the plaintiffs, and bars recovery, unless they can bring themselves within the doctrine of the last clear chance. Penland v. Southern R. Co., 228 N.C. 528, 46 S.E.2d 303 (and cases cited); Carruthers v. Southern R. Co., 232 N.C. 183, 59 S.E.2d 782 (unobstructed view 24 feet and 8 inches from East rail of track); Parker v. Atlantic Coast Line R. Co., 232 N.C. 472 61 S.E.2d 370, (unobstructed view after he stopped 8 or 10 feet from East rail); Herndon v. North Carolina R. Co., 234 N.C. 9, 65 S.E. 2d 320; (unobstructed view 45 feet from railroad track); Stevens v. Southern R. Co., 237 N.C. 412, 75 S.E.2d 232.

'A traveler has the right to expect timely warning, Norton v. North Carolina R. [Co.], 122 N.C. 910, 29 S.E. 886, but the failure to give such warning would not justify the traveler in relying upon such failure or in assuming that no train was approaching. It is still his duty to keep a proper lookout. ' Godwin v. Atlantic Coast Line R. Co., 220 N.C. 281, 17 S.E.2d 137, 140.

Justice Brogden in his characteristic style aptly said: 'There are two lines of decisions involving crossing accidents that run through the body of our law, as clearly marked and defined as the Gulf Stream that runs through the midst of the ocean. ' Eller v. North Carolina R. Co., 200 N.C. 527, 157 S.E. 800, 801. This case comes within the second class therein mentioned, where the plaintiffs took a chance and lost.

Dowdy was an employee of Burns, and at the time of the collision was acting within the scope of his employment. Dowdy's negligence is in law attributable to Burns. Hampton v. Hawkins, 219 N.C. 205, 13 S.E.2d 227; Rollison v. Hicks, 233 N.C. 99, 63 S.E.2d 190.

The Insurance Co. alleges in its joint complaint that it has paid to burns for damage to its tractor and oil tanker $2,394.10, and is entitled to be subrogated to the rights of Burns to the extent of the amount paid. Subrogation is the substitution of one person in the place of another with reference to a lawful claim or right. Liles v. Rogers, 113 N.C. 197, 18 S.E. 104, 37 Am.St.Rep. 627. The party who is subrogated is regarded as entitled to the same rights, and, indeed, as constituting one and the same person whom he succeeds. Commercial & Farmers Bank v. Scotland Neck Bank, 158 N.C. 238 at page 248, 73 S.E. 157; Grantham v. Nunn, 187 N.C. 394, 121 S.E. 662; Beam v. Wright, 224 N.C. 677, 32 S.E.2d 213. A party can acquire no better right by subrogation than that of the principal. Parsons v. leak, 204 N.C. 92, 167 S.E. 567. The Insurance Co. is regarded as constituting one person with Burns, and Dowdy's contributory negligence is in law attributable to Burns.

The next question presented: Does the evidence considered in its most favorable light make out a case for the jury on the doctrine of last clear chance? The principles of the doctrine of last clear chance have been defined countless times by this and other courts and various text writers, since its origin in the famous hobbled ass case of Davies v. Mann, 10 M & W. 546, decided by an English Court in 1842. This doctrine does not arise until it appears that the injured party has been guilty of contributory negligence. Redmon v. Southern R. Co., 195 N.C. 764, 143 S.E. 829; Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E.2d 337; Lee v. Atlantic Coast Line R. Co., 237 N.C. 357, 75 S.E.2d 143. Dowdy was guilty of such negligence in this case.

This doctrine has been clearly and succinctly stated in Ingram v. Smoky Mountain Stages, Inc., supra [225 N.C. 444, 35 S.E.2d 339]: 'The contributory negligence of the plaintiff does not preclude a recovery where it is made to appear that the defendant, by exercising reasonable care and prudence, might have avoided the injurious consequences to the plaintiff, notwithstanding plaintiff's negligence; that is, that by the exercise of reasonable care defendant might have discovered the perilous positon of the party injured or killed and have avoided the injury, but failed to do so.'

It is stated in Lee v. Atlantic Coast Line R. Co., supra [237 N.C. 357, 75 S.E.2d 147]: 'The last clear chance does not mean the last possible chance to avoid the accident[citing authorities]. It means such chance or interval of time between the discovery of the peril of the injured party, or the time such peril should have been discovered in the exercise of due care, and the time of his injury as would have enabled a reasonably prudent person in like circumstances to have acted in time to have avoided the injury', citing authorties.

The doctrine of last clear chance does not apply when the plaintiff is guilty of contributory negligence as a matter of law. Redmon v. Southern R. Co., supra; Sherlin v. Southern R. Co., 214 N.C. 222, 198 S.E. 640 Ingram v. Smoky Mountain Stages, Inc., supra.

Courts take judicial notice of subjects and facts of common and general knowledge. The law does not require us to be blind and deaf, and ignorant of facts of common and general knowledge to all men. Reid v. City Coach Co., 215 N.C. 469, 2 S.E.2d 578, 123 A.L.R. 140; Allen v. Dr. Pepper Bottling Co., 223 N.C. 118, 25 S.E. 2d 388 (common knowledge many of our improved roads 16 feet wide). In Davis v. Southern R. Co., 170 N.C. 582, 87 S.E. 745, this Court took judicial notice of the fact that the force of a rapidly passing train would be contrifugal from the side of the train and would cause one to fall outward, instead of creating a vortex which would carry him beneath the train.

We take judicial notice...