Eller v. North Carolina R. Co.

• Decision Date: 01 April 1931
• Docket Number: 330.
• Parties: ELLER v. NORTH CAROLINA R. CO. et al.
• Court: North Carolina Supreme Court

157 S.E. 800

200 N.C. 527

ELLER v. NORTH CAROLINA R. CO. et al.

No. 330.

Supreme Court of North Carolina

April 1, 1931

Appeal from Superior Court, Alamance County; MacRae, Special Judge.

Action by W. W. Eller against the North Carolina Railroad Company and another. Judgment for plaintiff, and defendants appeal.

Reversed.

Mere fact that railroad crossing, affording unobstructed vision was much used, and no watchman or signaling device was maintained, would not raise question of railroad's negligence in action for injuries in crossing collision.

On March 12, 1929, the plaintiff, a citizen and resident of Burlington, N. C., was taking his wife to school where she was employed as substitute teacher, and was traveling in a Ford roadster. He entered Hoke street, and traveled along said street in the direction of the school. The tracks of the defendant crossed Hoke street at grade. The tracks run east and west, and Hoke street runs north and south. Park avenue parallels the railroad track, and thus runs east and west on the south side of the track. The curb of Park avenue is 40 or 50 feet from the south rail of the main track. Hoke street is a paved street, and the pavement extends across the railroad tracks into what is known as Fisher street. All of the witnesses testified that Hoke street was a "nice street."

The side curtains were up, and the plaintiff approached the crossing at about 8:15 or 8:26 in the morning. The plaintiff testified that, as he moved toward the crossing, there were one or two cars ahead of him going in the same direction. One car stopped like it was going to turn in. The other car proceeded across the track. The car crossing the track "was about 15 or 20 feet in front of me. *** This car I was following kept on across the track. I saw this car parked there to my right. I did not stop there. I did not see a car stopped on the other side of the railroad tracks to my left. There was one car that came across. There were several cars crossing coming towards me, and as this car came on across the track the one in front came on across and kinder of knocked the view off from me. *** There were several cars coming across." Plaintiff further testified at the time he got even with the car parked near the crossing that "a child stepped out like it was going to cross in front of me and I kinder slowed down, and when I looked up the front of the car was just on the front of the track and I saw the train almost at once and I cut the car sharp to the right. *** When I looked up the train was right there on me and the front end of the car was just up on the track."

Plaintiff's wife, who was a passenger in the car testified: "I am familiar with this crossing. My husband was going with me on this morning. We were traveling in a Ford. I would say we approached this crossing between eight and ten miles an hour. No bell was ringing or signal blown by the engine. *** When this other car came across the railroad it obstructed his view and he could not see up the track. Just as he got on the track he saw the train and it was right on us, and he attempted to turn the steering wheel to the right, and when he did that it caught in the cross-ties of the track and he could not get it out any further, and when he did that just as he turned to the right I immediately jumped out of the car. *** As we approached this crossing Mr Coulter's car was ahead of our car. Mrs. Thompson's car was ahead of Mr. Coulter's car. When Mrs. Thompson got to the crossing it looked as if she was going to turn around. When she stopped she was very close to the curb. *** She was driving a Hudson. When she stopped Mr. Coulter's car passed her car and went right across the track. We were close on behind. Mr. Coulter's car barely did get across the track. *** There is no obstruction of any kind between Park Avenue and the railroad track. The railroad track comes right down the middle of Park Avenue. Park Avenue is a hard surface street. *** I would say Park Avenue is a regulation width street as compared with other streets. *** There were cars coming meeting our car at the crossing on the other side of the track. I know one particular car obstructed our view because cars were parked and we could not see. There was only one car that I actually remember meeting. *** There were other cars on the other side. They were stopped. They were stopped there waiting for the train to pass. *** When I first approached Park Avenue I did not see the train and did not hear it. I looked some more before our car was on the track. I told you this car that came across obstructed my view. *** We had the curtains up that morning."

Mr Coulter, who was carrying his children to school just ahead of plaintiff's car, testified that he did not hear any bell or signal. He further testified that he saw the train, and that it was about 150 feet away as he undertook to cross the track.

The evidence discloses that the Hoke street crossing was a populous and much-used crossing, especially by school children, and that there was no watchman or signal devices at the crossing. The evidence of plaintiff further discloses that there was a stop sign at the crossing. The evidence of plaintiff further showed that when you "come in line with Park Avenue you can see up the railroad several hundred yards." This distance was estimated at 300 to 400 yards, and there was no evidence to the contrary.

The usual issues were submitted to the jury and answered in favor of plaintiff. The issue of damages was answered in the sum of $8,000.

From judgment upon the verdict, the defendant appealed.

Hines, Kelly & Boren, of Greensboro, and J. Dolph Long, of Graham, for appellants.

H. J. Rhodes, of Burlington, and Frazier & Frazier, of Greensboro, for appellee.

BROGDEN J.

The case presents this situation: Hoke street in the city of Burlington is an improved and paved street. The tracks of defendant crossed this street at grade. Park avenue, a paved and improved street, is on the south side of the tracks. The plaintiff approached this crossing, without stopping although he...