Goldstein v. Atlantic Coast Line R. Co.

• Decision Date: 14 September 1932
• Docket Number: 282.
• Citation: 165 S.E. 337,203 N.C. 166
• Parties: GOLDSTEIN v. ATLANTIC COAST LINE R. CO. et al.
• Court: North Carolina Supreme Court

165 S.E. 337

203 N.C. 166

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

No. 282.

Supreme Court of North Carolina

September 14, 1932

Appeal from Superior Court, New Hanover County; Barnhill, Judge.

Action by Bessie W. Goldstein against the Atlantic Coast Line Railroad Company and another. From a judgment for defendant named, plaintiff appeals.

Affirmed.

Evidence that railroad car with which motorist collided blocked crossing for more than three minutes allowed by ordinance did not raise jury question.

On May 28, 1930, the plaintiff was a passenger in an automobile owned and operated by her husband, the defendant Harry Goldstein. They were returning to Wilmington from Wrightsville at about 8 o'clock at night. The road was straight and the car was traveling about twenty-five or thirty miles an hour. The tracks of defendant railroad crossed the Wilmington to Wrightsville highway at grade. At or near the junction of the county line and city limits of Wilmington the said defendant maintains a belt line and was engaged in shifting cars at or about the crossing. A gondola car blocked the crossing, and the defendant Harry Goldstein drove the automobile into said gondola car, inflicting injuries upon his wife, the plaintiff. There was neither watchman nor light at the crossing. The plaintiff introduced in evidence two ordinances of the city of Wilmington. The first ordinance required the defendant railroad company to ring the bell of the engine whenever the engine was moving across any street or highway within the limits of the city. The other ordinance made it unlawful for "any railroad company, its agents or employees to stop, place or leave standing for a period exceeding three minutes, at any one time, any engine or locomotive, or car of any description across or along any street within the city limits in such a manner as to prevent the free passage of pedestrians, carts drays or other vehicles along such street. In all cases where engine, car or cars are placed and left across any street or portion thereof, an opening or space, of not less than twenty-five feet at or near the center of the street, shall be kept clear for travel."

The home of the Evans family was about fifteen feet from the crossing. Mr. Evans testified that he was in his house assisting one of his children in preparing lessons. He said "The train come up and made some noise, and my smallest child, a knee-high baby, got up and went to the window and said: 'You hear the ding dong,' and I was still teaching the child his lesson, and I will say four or five minutes after the kid went to the window I heard the crash. *** I could not say if it was standing still or moving from the time I heard the bell. It was across the crossing for four or five minutes, it seemed right up to my window. The train must have been blocking the highway for four or five minutes, because the cars were across the road. I heard the train when it backed up there and stopped and I heard the train bell ring and I heard her blow. *** I could not say the train was moving at the time I heard the whistle and bell; I didn't see it. *** I do not know just when the train went on the sidetrack from the belt line, but I would say it had been there four or five minutes. I imagine the train was coupling like they usually do from the time I first heard it blow until I saw the accident. It was also switching, I suppose." This witness testified that after he heard the crash he opened the door and ran out barefooted.

Mrs Lula Evans, wife of J. W. Evans, said: "I was sitting in the kitchen around the table with my husband learning the children their lessons. I heard the train as it came upon the spur track and stopped. I heard it stop. I afterwards heard the crash. It was about five or six minutes after I heard the train stop. *** I heard the train come up. I imagine it had stopped five or six or seven minutes before I heard the crash. How long it stood still I cannot say. I don't have a clock or watch in the room, but it was some time. I was in the house. *** This gondola car had been across the crossing for five or six or seven minutes before Mr. Goldstein hit it....