Earwood v. Southern Ry. Co.

• Decision Date: 27 May 1926
• Docket Number: 590.
• Citation: 133 S.E. 180,192 N.C. 27
• Parties: EARWOOD v. SOUTHERN RY. CO. et al.
• Court: North Carolina Supreme Court

133 S.E. 180

192 N.C. 27

EARWOOD v. SOUTHERN RY. CO. et al.

No. 590.

Supreme Court of North Carolina

May 27, 1926

Appeal from Superior Court, Cherokee County; Bryson, Judge.

Action by John Earwood, administrator of Gordon Earwood, deceased against the Southern Railway Company and others. Judgment for plaintiff, and defendants appeal. No error.

Doctrine of concurrent negligence held applicable to injury to guest in automobile struck by train.

Graham street in the town of Andrews runs approximately north and south, and intersects the line of the Southern Railway from Asheville to Murphy, at right angles, within the corporate limits of said town of Andrews. On the north side of the railroad right of way and on the east side of Graham street there was a baseball ground inclosed with a fence 10 or 12 feet high. The fence of the baseball park runs parallel with the railroad, and said fence is also parallel with the eastern side of Graham street.

On Sunday, the 28th day of September, 1924, Albert Wakefield was driving an automobile from the Government Armory, which is situated on the north side of the track of the defendant railway, and going to his dinner. His wife was on the front seat with him, and plaintiff's intestate, Gordon Earwood was riding with him on the back seat of the car. Wakefield drove the car into Graham street, and then proceeded along Graham street south across the track of the defendant. The evidence tended to show that he did not slacken the speed of the car or stop the same before reaching the track of the defendant, but drove straight ahead at a rapid rate of speed upon said track. Defendant's passenger train was then approaching the crossing, and said passenger train struck said automobile, killing all of the occupants thereof.

There was evidence tending to show that Graham street was a much used street, and that the passenger train of the defendant was negligently operated at the time, in that it approached said crossing ahead of its schedule, running at an unusually rapid rate of speed, and without blowing the whistle or ringing the bell or giving any notice whatever of its approach to said crossing. There was much evidence offered by the defendant to the effect that the whistle was blown, and that the bell was ringing at the time of the collision. There was also strong evidence offered by the defendant by several disinterested witnesses that Wakefield, the driver of said car, approached said crossing at a very rapid and unlawful rate of speed and drove upon said crossing without stopping or in any way slackening the speed of the automobile. There was testimony on behalf of the plaintiff by eyewitnesses to the killing that they heard no whistle blow, and that no bell was rung by the defendant, and that they were in a position where they could have heard such signals.

The usual issues of negligence, contributory negligence, and damages were submitted to the jury. The jury found that the defendant was guilty of negligence, and that the plaintiff's intestate was not guilty of contributory negligence, and awarded damages in the sum of $7,000.

From judgment upon the verdict the defendant appealed.

Thomas S. Rollins, of Asheville, for appellants.

Moody & Moody, of Murphy, for appellee.

BROGDEN J.

The crossing in controversy was a grade crossing, and, according to the evidence, one that was much used by the public. It was therefore the duty of the defendant to use due care in giving a timely warning of the approach of its train either by sounding the whistle or ringing the bell at the usual and proper place in order that those approaching or using the crossing could be apprised that the train was at hand. It is established law that failure to perform this duty constitutes negligence. Edwards v. Railroad, 132 N.C. 100, 43 S.E. 585; Bagwell v. Railroad, 167 N.C. 611, 83 S.E. 814; Goff v. Railroad, 179 N.C. 216, 102 S.E. 320; Pusey v. Railroad, 181 N.C. 137, 106 S.E. 452; Williams v. Railroad, 187 N.C. 348, 121 S.E. 608.

There was sufficient evidence to be submitted to the jury as to the failure of defendant to give...