Hampton v. Hawkins

• Decision Date: 26 February 1941
• Docket Number: 28.
• Citation: 13 S.E.2d 227,219 N.C. 205
• Parties: HAMPTON v. HAWKINS et al.
• Court: North Carolina Supreme Court

13 S.E.2d 227

219 N.C. 205

HAMPTON v. HAWKINS et al.

No. 28.

Supreme Court of North Carolina

February 26, 1941

Q C. Davis, of Norfolk, Va., and John H. Hall, of Elizabeth City, for plaintiff, appellant.

J Kenyon Wilson, of Elizabeth City, for defendants appellees.

DEVIN Justice.

The plaintiff's intestate came to his death as the result of a collision between a motor truck in which he was riding, and one of defendant's freight trains on the Norfolk Southern Railroad. The motor truck was the property of plaintiff's intestate and was being driven for him at the time by his employee.

As there was evidence of negligence on the part of defendants in failing to give timely warning of the approach of the train to a grade crossing, it would seem that the only ground upon which judgment of nonsuit could be predicated was that plaintiff's evidence conclusively established contributory negligence upon the part of the driver of the truck, whose negligence, if any, was in law attributable to the plaintiff's intestate.

As the burden of proof upon the issue of contributory negligence was upon defendants, it is the settled rule in this jurisdiction that judgment of nonsuit on this ground can be rendered only when a single inference, leading to that conclusion, can be drawn from the evidence. Manheim v. Taxi Corp., 214 N.C. 689, 200 S.E. 382; Cole v. Koonce, 214 N.C 188, 198 S.E. 637. As was said in Hayes v. Tel. Co., 211 N.C. 192, 189 S.E. 499, 500, judgment of nonsuit becomes proper only "when the contributory negligence of the plaintiff is established by his own evidence, as he thus proves himself out of court." It is equally well settled that on this motion the evidence must be considered in the light most favorable to the plaintiff.

Examining the record of the testimony in the light of these principles, we deduce the material facts and surrounding circumstances as follows:

The motor truck in which plaintiff's intestate was riding was being driven in an eastward direction over an unpaved public road in Currituck County. The road, as well as the local terrain, was level. The road which was twenty feet wide from ditch to ditch, crossed defendant's railroad tracks at grade, at right angles, near Gregory Station. There was an elevation of twelve inches at the crossing. The injury occurred about 10:30 A.M., May 16, 1938. The day was clear. There was no other traffic on the road. The train with which the truck collided was coming from the south, at a speed of forty miles per hour, approaching from the truck driver's right. The driver of plaintiff's intestate was familiar with the crossing, having driven over it, on an average of once a week, for several years. On the right of the driver of the truck, as he approached the crossing, scattered along a distance of some 250 yards, was a stable, barn, several small outhouses, and near the crossing a store house facing in the direction of the railroad tracks. On the front of the store was a porch, the roof supported by posts. The plaintiff's witness testified the store was "about 30 feet" from the tracks. However, it was admitted the defendant's right of way extended 33 feet westward, and the store and porch were beyond the right of way. The surveyor, who measured the distance, testified that the porch was 9.2 feet wide, that from the track to the front of the porch was 36.5 feet, making 45.7 feet to the building itself. The store building was 20 or 30 feet from the road, or 46 feet according to the surveyor. Plaintiff's witness testified that...