Gilmore v. Cape Fear & Y

• Decision Date: 13 November 1894
• Citation: Gilmore v. Cape Fear & Y, 20 S.E. 371, 115 N.C. 657 (N.C. 1894)
• Court: North Carolina Supreme Court
• Parties: GILMORE . v. CAPE FEAR & Y. v. R. CO.

20 S.E. 371

115 N.C. 657

GILMORE .

v.CAPE FEAR & Y.

v.R. CO.

Supreme Court of North Carolina.

Nov. 13, 1894.

Action against Railroad Company — Accident at Crossing—Contributory Negligence.In an action against a railroad company for injuries caused by the frightening of plain tiff's mule at a railroad crossing by an approaching train which failed to give any signal, plaintiff testified that he first saw the train when about 60 steps from the crossing, and immediately got out of his wagon, and caught the mule by the bridle, but that it became unmanageable through a sudden exhaust of steam from the engine.Defendant's witness testified that the slope of the approach to the railroad was considerable, and that there were deep gullies on each side of the road, which prevented a team from turning out.Plaintiff's testimony showed that the approach was not so dangerous, but he admitted that he was driving a "scary" mule.Held, that it was a question for the jury whether plaintiff was negligent in not having sooner stopped and listened for the train.Shepherd, C. J., and Burwell, J., dissenting.

Appeal from superior court, Chatham county; Hoke, Judge.

Action by B. N. Gilmore against the Cape Fear & Yadkin Valley Railroad Company.There was a judgment for defendant, and plaintiff appeals.Reversed.

H. A. London, for appellant.

Geo. M. Rose, for appellee.

MacRAE, J.There can be no question, upon the uncontradicted testimony, that the failure to blow for the crossing was negligence on the part of the defendant.Randall v. Railroad Co., 104 N. C. 410, 10 S. E. 691;Hinkle v. Railroad Co., 109 N. C. 472, 13 S. E. 884.The defendant however, contends that plaintiff failed to "stop, look, and listen" when he reached the point from which, to the crossing, it would be dangerous for the plaintiff to drive when a train was approaching.The principles here involved have been so clearly discussed and settled in recent cases in this court—those named above and others there cited—that nothing is left for us but to apply known rules to the present circumstances.Did the evidence offered by the plaintiff clearly show that the part of the road upon which the plaintiff had entered after passing the "eminence, " as it is called, and started down grade to the crossing, was so dangerous to travelers, in case of the approach of a train, that it was incumbent upon the plaintiff to have looked and listened for a train before proceeding further?The law is plain."Where a person in charge of a wagon and team approaches a public crossing, it is his duty to look and listen, and take every prudent precaution to avoid a collision, even though the approach be made at an hour when no regular train is expected to pass.The same degree of care and caution should be exercised by one who is about to drive into...