Goff v. Atlantic Coast Line R. Co.

• Decision Date: 25 February 1920
• Docket Number: 63.
• Citation: Goff v. Atlantic Coast Line R. Co., 179 N.C. 216, 102 S.E. 320 (N.C. 1920)
• Parties: GOFF v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

102 S.E. 320

179 N.C. 216

GOFF v. ATLANTIC COAST LINE R. CO.

No. 63.

Supreme Court of North Carolina

February 25, 1920

Appeal from Superior Court, Edgecombe County; Devin, Judge.

Action by G. E. Goff, administrator, against the Atlantic Coast Line Railroad Company.Judgment for plaintiff, and defendant appeals.Affirmed.

Evidence held to make a question for the jury as to whether automobile driver's view and hearing were so obstructed that he could not see or hear the approaching train in time to avoid the collision by the exercise of ordinary care.

This is an action to recover damages for the negligent killing of plaintiff's intestate, D. C. Goff, at the public crossing in Rocky Mount at Gay's store on Cokey road.

The allegations of negligence are that the defendant allowed trees and bushes to grow on its right of way and failed to give the signals to travelers required at crossings by ringing the bell and blowing the whistle or and plaintiff killed; that the engineer and fireman failed to keep a proper lookout for otherwise, at the proper time, in order to warn the travelers of the approach of the train, and caused plaintiff's intestate to enter on the right of way with his car in motion, and to undertake to cross over said railroad, and negligently caused said train to pass over said crossing at an excessive, rapid, reckless, and unusual rate of speed, to wit, more than 50 miles an hour, and without keeping any lookout on part of its engineer and fireman and after plaintiff's automobile was stricken by the engine of said train it was negligently carried, with plaintiff's intestate in same, over 300 yards on front of said engine until it struck a switch post standing close to the track, when said automobile and plaintiff's intestate were hurled violently to the ground the protection of travelers on said road passing over said crossing, and that if they had kept a proper lookout, they could have seen said automobile as it reached the crossing and was picked up by the engine, and avoided carrying same until it struck a switch post, and violently hurling the auto and plaintiff's intestate to the ground and killing him.

The defendant denied that it was negligent, and pleaded that the death of the plaintiff's intestate was caused by his own contributory negligence.

At the conclusion of the evidence the defendant moved for judgment of nonsuit, which was overruled, and the defendant excepted.

The defendant also excepted to the submis-

The defendant also excepted to the charge of the court upon the third issue upon the ground that there was no evidence that the sion of the third issue to the jury upon the ground that there was neither allegation nor proof to support it.

intestate was not mortally injured by the collision at the crossing.

The defendant also excepted because of refusal to give the following instruction to the jury:

"The burden is on the plaintiff to satisfy you by the greater weight of the evidence that the deceased, before attempting to cross the railroad, listened and looked in both directions to ascertain if a train was approaching; so, if the plaintiff has not satisfied you that the deceased did listen and look in both directions for an approaching train before attempting to cross the track, you are instructed to answer the issue as to contributory negligence 'Yes.' "

The jury returned the following verdict:

"(1) Was plaintiff's intestate killed by negligence of defendant, as alleged in the complaint?Answer: Yes.

(2) Did plaintiff's intestate by his own negligence contribute to his injury and death, as alleged in the answer?Answer: No.

(3) Was the death of plaintiff's intestate caused by the negligence of the defendant in failing to stop its train in time to prevent the automobile from being thrown against the switch post, after said automobile had been struck by the engine, as alleged in the complaint?Answer: Yes.

(4) What damage, if any, is plaintiff entitled to recover of the defendant?Answer: $18,000."

Judgment was entered upon the verdict for the plaintiff, and the defendant excepted and appealed.

F. S. Spruill, of Rocky Mount, and John L. Bridgers, of Tarboro, for appellant.

J. B. Ramsey, of Rocky Mount, and W. O. Howard, of Tarboro, for appellee.

ALLEN J.

The motion for judgment of nonsuit is upon the ground: (1) That there is no evidence of negligence; (2) that the plaintiff's intestate was guilty of contributory negligence in any view of the evidence.

If the first position can be maintained, the defendant is entitled to a reversal of the judgment, but the same result does not necessarily follow if the plaintiff's intestate was guilty of contributory negligence, because it has been found in answer to the third issue that, whether plaintiff's intestate was negligent or not, the defendant could have avoided killing the deceased but for its negligent failure to stop after the automobile was struck, and caught on the front of the engine.

Is there evidence of negligence?In Bagwell v. Railroad,167 N.C. 615, 83 S.E. 816, the court quotes with approval the following from Edwards v. Railroad,132 N.C. 100, 43 S.E. 585:

"It is undoubtedly true that the engineer must give such a signal as will be reasonably sufficient to warn persons on highways that intersect the track of the coming of the train, and this must be done by ringing the bell or blowing the whistle, as the peculiar circumstances of the case may suggest to be the proper method, and the failure of the engineer to give such signal would be evidence of negligence.Hinkle v. R. R.,109 N.C. 473[13 S.E. 884]26 Am. St. Rep. 581.The warning must be reasonable and timely, but what is reasonable and timely warning must depend upon the conditions existing at the time in the particular case, and we are not by any means prepared to say that the law requires in every case that the signal should be given in any special way.We know of no such hard and fast rule as that laid down by the trial judge in this case.The bell and the whistle are the appliances provided for the purpose of giving signals, and one or the other, as the case may seem to require, must be used for that purpose, and, in cases of emergency or when the peculiar situation seems to demand it, there should perhaps be a resort to the use of both; but it must be left to the jury to decide, upon proper instructions of the court as to the law, what is the proper signal in any given case."

It was also held in Edwards v. Railroad,129 N.C. 79, 39 S.E. 730:

"That the testimony of a witness that he did not hear either the whistle or the bell, although in a position where he might reasonably have heard either, is sufficient evidence for the consideration of the jury.It tends to prove that neither the whistle nor the bell was sounded; but whether it does prove it is for them alone to decide."

Applying these principles, the plaintiff was entitled to have his cause of action considered by the jury.

The plaintiff's intestate was driving his automobile at a moderate rate of speed on the Cokey public road, which crosses the railroad of the defendant within the corporate limits of Rocky Mount, and as he attempted to cross the track he was stricken by the train and injured.

One witness testified:

"A man coming up to the crossing and car moving he could not turn to either side; there are ditches on both sides.I have seen cars have wrecks there on both sides to keep out of way of trains.Rocky Mount has about 21,000 people.This crossing is in the town limit; is built up about there.I guess built up about four blocks towards Tarboro.The crossing is used a whole lot.Two main roads cross it; somebody crossing most of the time.All the county south side Norfolk, Carolina, and east of W. & W. Railroad; this is the only crossing in this section."

J. O. Joyner, who was at Gay's store within 100 feet of the crossing, testified:

"Did not hear any whistle; bell was not ringing; didn't see train until after it struck auto."

Jesse Calhoun, also at Gay's store, says:

"Don't remember hearing any signal."

Frank Carter, who was at his home 150 feet from crossing:

"Didn't hear it blow.I can hear train blow at crossing at my house.Has blown heap of times when I didn't hear it."

Mrs. Moore, within 100 yards of crossing:

"I noticed the train coming at extra speed; didn't hear whistle blow."

W. H. Gay:

"I was in store; I guess store is about 10 steps from right of way; did not hear any signal of train; heard the smash and saw auto wheel rolling between spur track and railroad, kinder in direction train was going."

This was sufficient to be submitted to the jury on the question of the failure of the defendant to give any notice of the approach of its train to a much-used public crossing, and, if it failed in the performance of this duty, it was guilty of negligence.There is also evidence that no proper lookout was maintained.

The fireman on the engine testified that he saw the intestate approaching the track, driving about 8 miles an hour, and that he said nothing to the engineer until after the collision, and a witness testified he heard the engineer say "he didn't know he hit any one until car struck switch," which was 300 or 350 yards beyond the crossing.

There is evidence of contributory negligence, in that the intestate, by the exercise of proper care, could have heard the roar of the train or could have seen it in time to stop before entering upon the track, but it is not so conclusive that it can be declared as matter of law.

The principles applicable to this phase of the case are accurately stated in Johnson v. Railroad,163 N.C. 443, 79 S.E. 695, Ann. Cas. 1915B, 598.

"(4) On reaching a railroad crossing, and before...