Elder v. Plaza Ry.

• Decision Date: 30 November 1927
• Docket Number: 459.
• Citation: Elder v. Plaza Ry., 194 N.C. 617, 140 S.E. 298 (N.C. 1927)
• Parties: ELDER v. PLAZA RY.
• Court: North Carolina Supreme Court

140 S.E. 298

194 N.C. 617

ELDER v. PLAZA RY.

No. 459.

Supreme Court of North Carolina

November 30, 1927

Appeal from Superior Court, Mecklenburg County; Finley, Judge.

Action by Kathryn L. Elder against the Plaza Railway. Judgment for plaintiff, and defendant appeals. Reversed.

Clarkson J., dissenting.

Automobile driver, attempting to pass another and colliding with street car approaching from opposite direction, held contributorily negligent as matter of law.

Civil action to recover damages for an alleged negligent injury resulting from a collision between defendant's street car and plaintiff's automobile.

The evidence tends to show that on the night of January 2, 1926 about 11:25 p. m., the plaintiff, Mrs. Kathryn L. Elder, was driving eastwardly along Central avenue in the city of Charlotte, in a closed Ford coupé, when she collided with one of the defendant's street cars moving westwardly along said street and was seriously injured.

Plaintiff testified substantially as follows.

I was riding behind a Chrysler car which was throttled down to 3 or 4 miles an hour. As I could not throttle my car down as slow as that, I blew my horn and drew over to the left to pass and, in doing so, I had to get on the street car track, as there was not room enough for me to pass; they were driving so far away from the curbing. At this point, the street car line is a single track. As I drew alongside of the Chrysler they speeded up to keep me from passing. I immediately dropped back behind them, when they slowed down again. I then blew my horn and drew over to the left, starting to pass, and there was another automobile approaching me (from beyond the street car) going in a westerly direction, with lights so bright that they blinded me, and as I drew alongside the Chrysler they speeded up again to keep me from passing, and I knew there was no use in my trying to pass with this bright light in my face, so I attempted to drop back behind the Chrysler again when I was hit by the street car, and that is all I remember. The wheels of my Ford coupé were on the street car track when I was hit. I didn't see the street car coming along. I didn't hear any signal of any kind. The crash occurred about the center of the block. There is a considerable slope at that point, and I was going up grade.

According to the uncontradicted evidence of the witnesses, the plaintiff came from behind the Chrysler and ran upon the track from 12 to 20 feet in front of the moving street car, which was going down grade, while plaintiff was traveling up grade, and the collision took place almost instantly.

The usual issues of negligence, contributory negligence, and damages were submitted to the jury and answered in favor of the plaintiff. From the judgment entered thereon, the defendant appeals, assigning errors, chiefly because of the refusal of the court to nonsuit the plaintiff.

John M. Robinson and Taliaferro & Clarkson, all of Charlotte, for appellant.

Tillett, Tillett & Kennedy, of Charlotte, for appellee.

STACY C.J.

The defendant's negligence may be conceded, or that there is evidence tending to establish it, but it is stressfully contended that the plaintiff's own testimony shows such contributory negligence on her part as to bar a recovery.

Plaintiff does not say how long she was on the track before the collision, but a fair inference from her testimony is that it occurred almost immediately after she ran from behind the Chrysler automobile. The uncontroverted testimony of all the witnesses is to the effect that, when the plaintiff ran upon the track, the moving street car was not less than 12 nor more than 20 feet away. Assuming that the motorman and the plaintiff, running in opposite directions, or towards each other, were both moving at a rate of about 15 or 20 miles an hour, which is considerably less than some of the witnesses put the plaintiff's speed, this would leave but a short interval of time for the motorman to stop; in fact, too short for practical purposes. The plaintiff, according to her evidence, made no effort to stop, as she did not see or hear the street car. She testified that she was blinded by the bright lights of an automobile approaching from the opposite direction. Under this evidence, we think the proximate cause of the injury must be referred to the...