Godwin v. Atl. Coast Line R. Co

• Decision Date: 23 December 1931
• Docket Number: NO. 109.,109.
• Citation: 202 N.C. 1,161 S.E. 541
• Parties: GODWIN . v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

161 S.E. 541

(202 N.C. 1)

GODWIN .

v.ATLANTIC COAST LINE R. CO.

NO. 109.

Supreme Court of North Carolina

Dec. 23, 1931.

.

Appeal from Superior Court, Harnett County; Clayton Moore, Special Judge.

Action by W. J. Godwin against the Atlantic Coast Line Railroad Company. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

On the morning of April 26, 1930, the plaintiff was going to his farm which was situated west of the defendant railroad. The car was driven by plaintiff's son, but under the direction and control of plaintiff. The road upon which plaintiff was traveling crossed the tracks of defendant at grade at a point known as Gainey's crossing. There was a North Carolina stop sign near the crossing. Plaintiff's narrative of the collision and injury is substantially as follows: "I stopped about forty-five or fifty feet from the first rail. From the point where I stopped I could not see down the railroad track for a bunch of willow trees. * * * I stopped behind the willow trees. The willow trees reached up to the right of way. * * * We looked both ways for a train and didn't see the right of way. * * * We looked both ways for a train and didn't see one or hear the whistle blow or the bell ring. After thinking that our way was clear, we went on and just as the wheels of our car got on the first track the train tooted once and we drove on trying to get off the track, and the car was struck by the train. The car was within twenty-five or thirty yards of us when it tooted one time. * * * The first track was right smart lower than the next track, about fifteen or twenty inches lower, and the crossing was narrow. The road bed where the crossing is was just wide enough for one car to go across. I have crossed the railroad at this point a great many times before. In crossing the first track there is a sudden rise across the next track. That track is elevated some fifteen or twenty inches. The surface of the crossing was rough. * * * I was born within three miles of Dunn and used this crossing on an average of two or three times a day for twenty years. I was perfectly familiar with the crossing. The railroad * * * runs through an open field and runs north and south. The road on which I was traveling runs about east and west."

The plaintiff also offered evidence tending to show that the view of a traveler approaching the crossing was obstructed. The testimony with respect to such obstructions is substantially as follows: There is a cut about two hundred yards south of the crossing. There are certain willow trees which are about seventy-five yards south of the crossing. These trees were twelve or fifteen feet high. However, the evidence tended to show that these willow trees were not on the right of way. One of the witnesses for the plaintiff testified that the willow trees were on the land of a man named Jim Woods. There was a persimmon tree about seventy-five yards, below the willow trees. This would place the persimmon tree about one hundred and...