Godwin v. Atlantic Coast Line R. Co.

• Decision Date: 05 November 1941
• Docket Number: 234.
• Citation: 17 S.E.2d 137,220 N.C. 281
• Parties: GODWIN v. ATLANTIC COAST LINE R. CO. et al.
• Court: North Carolina Supreme Court

17 S.E.2d 137

220 N.C. 281

GODWIN v. ATLANTIC COAST LINE R. CO. et al.

No. 234.

Supreme Court of North Carolina

November 5, 1941

Civil action to recover for personal injuries and property damage alleged to have been caused by the negligence of the defendant.

The record discloses that on April 27, 1940, the plaintiff and her niece were riding in plaintiff's Chevrolet sedan when it was struck by defendant's train at a street crossing in the Town of Dunn, resulting in serious personal injuries to the plaintiff and damage to her automobile.

The plaintiff lives at the corner of West Divine Street and Railroad Avenue within a very short distance of the crossing where the accident occurred. Divine Street crosses the railroad tracks at right angles, and Railroad Avenue runs parallel to the tracks and between plaintiff's residence and the railroad. Plaintiff was familiar with the train schedules and knew the regular northbound fast passenger train No. 80 ran through the town every day about noon. She is 45 years of age and has lived there for more than ten years. Approaching the Divine Street triple track crossing from the west in the direction plaintiff was coming and looking from the "stop sign" erected by the railroad to the south, the direction in which the train was coming, the view is clear for a distance of a block and a half. In this second block are two section houses and a water tank on defendant's right of way, which obstructed plaintiff's view beyond the first section house. This first section house is 350 feet according to plaintiff's evidence, and by actual measurement 446 feet, from the south side of Divine Street. The water tank is 815 feet from Divine Street.

Plaintiff testified that when she got to the "stop sign", she stopped, looked to the south "and the coast was clear and I didn't see any train whatever". She then "pulled up nearly to the crossing" so that she could see past the warehouse on her left "and looked back to the right and I didn't see any train" didn't hear any bell or whistle signal, "and I proceeded on slowly and approached the track as slow as I could, and when I got on the track or just about across, the train came steaming around *** at a terrific rate of speed 45 or 50 miles an hour. *** It was right on me before I knew it *** before I had time to do anything. *** The train was almost to the switch when I first saw it. *** The engine was in about 20 feet. *** There was a crash and that is the last I knew". (Cross examination): "At the time of the accident, it was broad open daylight, about noon. *** I knew train No. 80 ran through there every day about that time. *** It was a clear sunny day. * * I did hear the whistle blow but it was right on me, just a short distance from me when it blew. *** I could not have heard the noise two blocks away. *** I have been driving an automobile about 14 years. *** From the point where I stopped the second time, you cannot see as far as the water tank. *** I stopped my car about 9 feet from the (spur) track. *** I drove about 20 feet, while the train went at least 350 feet".

Plaintiff's Witness, O. R. Pearce, testified that it is "about 24 feet from the west rail of the spur track to the west rail of the north-bound track. Continuing east from the spur track when you get to the next railroad track which is the southbound track and look to your right you will have a straight angle then from every way and you can see as far as you can look. Looking from any point on the extreme west of the right of way until one gets past the southbound track and between the southbound track and the northbound track, a person can see a train just as far as they can see, looking either north or south. After you get on the spur track, a person going east across the Divine Street crossing and until the time they got on the northbound track on which No. 80 was running on the 27th day of April, 1940, could have seen a train down the south any way you looked at any of the crossings. This applies to any of the crossings in the Town of Dunn."

The engineer testified that he had just passed Main Street crossing and Pearsall Street crossing in the Town of Dunn, and as he approached Divine Street crossing he had slowed down to 20 or 25 miles an hour, with the engine bell ringing; that he stopped after the accident in about three car lengths; that the bell was then ringing, and that had he been running 45 to 50 miles an hour he could not have stopped in so short a distance.

These central facts were amplified by other witnesses and additional testimony, and there was evidence from the defendant in contradiction of plaintiff's testimony, but the foregoing will suffice for the disposition which we think must be made of the case.

The defendant demurred to the evidence and asked for a directed verdict on the issue of contributory negligence. Both requests were denied. Exceptions.

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

Thomas W. Davis, of Wilmington, and Rose & Lyon, of Fayetteville, for defendant R. R., appellant.

J. R. Young and D. C. Wilson, both of Dunn, for appellee.

STACY Chief Justice.

The question for decision is whether the plaintiff's contributory negligence is such as to bar a recovery. The pertinent authorities would seem to suggest an affirmative answer. Temple v. Hawkins, 220 N.C. 26, 16 S.E.2d 400; Hampton v. Hawkins, 219 N.C. 205, 13 S.E.2d 227; Pitt v. Atlantic Coast Line R. R., 203 N.C. 279, 166 S.E. 67; Godwin v. Atlantic Coast Line R. R., 202 N.C. 1, 161 S.E. 541; Batchelor v. Atlantic Coast Line R. R., 196 N.C 84, 144 S.E. 542, 60 A.L.R. 1091; Harrison v. North Carolina R. R., 194 N.C. 656, 140 S.E. 598; Elder v. Plaza R. R., 194 N.C. 617, 140 S.E. 298; Holton v. Kinston-Carolina R. R., 188 N.C. 277, 124 S.E. 307; Davis v. Piedmont & N. R. R., 187 N.C. 147, 120 S.E. 827; Wright v. Southern R. R., 155 N.C. 325, 71 S.E. 306; Coleman v. Atlantic Coast Line R. R., 153 N.C. 322, 69 S.E. 251; Mesic v. Atlantic & N. C. R. R., 120 N.C. 489, 26 S.E. 633; Rigler v. Charlotte, etc., R. R., 94 N.C. 604.

It is the prevailing and permissible rule of practice to enter judgment of nonsuit in a negligence case, when it appears from the evidence offered on behalf of the plaintiff that his own negligence was the proximate cause of the injury or one of them. Battle v. Cleave, 179 N.C. 112, 101 S.E. 555; Wright v. Southern R. R., supra; Beck v. Hooks, 218 N.C. 105, 10 S.E. 2d 608. The plaintiff thus proves himself out of court. Horne v. Atlantic Coast Line R. R., 170 N.C. 645, 87 S.E. 523, Ann. Cas.1918A. 1171. It need not appear that his negligence was the sole proximate cause of the injury as this would exclude any idea of negligence on the part of the defendant. Absher v. Raleigh, 211 N.C. 567, 190 S.E. 897. It is enough if it contribute to the injury. Wright v. D. Pender Grocery Co., 210 N.C. 462, 187 S.E. 564.

The very term "contributory negligence" ex vi termini implies that it need not be the sole cause of the injury. Fulcher v. Pine Lumber Co., 191 N.C. 408, 132 S.E. 9. The plaintiff may not recover, in an action like the present, when his negligence concurs with the negligence of the defendant in proximately producing the injury. West Const. Co. v. Atlantic Coast Line R. R., 184 N.C. 179, 113 S.E. 672.

The reason the defendant's evidence is not to be considered on a motion of this kind, unless favorable to the plaintiff and except for explanatory purposes when not in conflict with plaintiff's evidence, Harrison v. North Carolina R R., 194 N.C. 656, 657, 140 S.E. 598, is that the burden of showing contributory negligence rests with the defendant. Nevertheless, when it appears from the plaintiff's own evidence that he was contributorily negligent, which pro hoc vice partakes of the nature of admissions, it is proper to dismiss the action as in case of nonsuit. Davis v. Piedmont & N. R. R., supra, and cases there cited. In other words, while the defendant has the burden of proof on the issue of contributory negligence, and the credibility of his evidence would be for the jury, the plaintiff may relieve him of the onus by his own evidence and thus reduce the case to a question of law for the court. Hayes v. Western Union Tel. Co., 211 N.C. 192, 189 S.E. 499. What is negligence is a question of law, and, when the facts are admitted or...