Harrison v. North Carolina R. Co.

• Decision Date: 07 December 1927
• Docket Number: 384.
• Citation: 140 S.E. 598,194 N.C. 656
• Parties: HARRISON et al. v. NORTH CAROLINA R. CO.
• Court: North Carolina Supreme Court

140 S.E. 598

194 N.C. 656

HARRISON et al. v. NORTH CAROLINA R. CO.

No. 384.

Supreme Court of North Carolina

December 7, 1927

Appeal from Superior Court, Davidson County; Lyon, Judge.

Action by J. H. Harrison and another, administrators of Charles M Lomax, against the North Carolina Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed. Civil action to recover damages for an alleged wrongful death caused by a collision between one of defendant's passenger trains and an automobile driven by plaintiff's intestate.

The evidence tends to show that about the hour of noon, May 20 1925, plaintiff's intestate, Charles Lomax, ran his Ford coupé, in which he and Miss Pauline Castor were riding, upon the defendant's tracks, at a public crossing in the town of Landis, N. C., in front of an approaching train operated by defendant's lessee, Southern Railway Company, and was killed, while his companion escaped with serious, but not fatal, injuries. There are two parallel tracks at this crossing. Plaintiff's intestate approached from an easterly direction and stopped his car 10 or 15 feet from the railroad to await the passing of a freight train moving southwardly on the more distant track. As soon as the caboose of the freight train cleared the crossing, plaintiff's intestate started to cross the railroad, when he was struck by a fast passenger train running northwardly on the track next to him. This track he had about half cleared, as the train hit the rear of his automobile.

Plaintiff introduced two eyewitnesses, who testified, in substance, as follows:

N.C McGinnis:

I saw the collision. J. F. Rumbley and I were traveling in a Ford coupé, with a closed body, and we stopped our car 25 or 30 feet behind the Lomax car. We were all waiting for the freight train, going southwardly, to pass over the crossing. Mr. Lomax stopped his car within 10 or 15 feet of the crossing. The train which struck the Lomax car was a north-bound passenger train, and the accident occurred about noon. I did not hear the train give any signal of its approach. I did not hear any whistle or bell. I will not deny that signals were given by the approaching train, but I did not hear them. There was sufficient noise from the passing freight train to have prevented my hearing the signals if given. I did not see the train until just before it struck the Lomax car. It was "pushing right into the crossing" when I first saw it. As the caboose of the freight train cleared the crossing, Mr. Lomax immediately started to cross. The passenger train was coming up on the track next to him. There is a cut at this crossing. The embankment, in my judgment, is 10 or 15 feet from the rail of the eastern or north-bound track. In that space-that is, 10 or 15 feet before reaching the track-there is nothing in the world to keep a man from seeing the train approaching from the south if he would look before he got on the track. "If Mr. Lomax had looked from where he was sitting in his automobile, I would say, in my judgment, he could have seen the train, which struck him, approaching for a distance of 75 or 100 yards."

J. F. Rumbley:

I saw the collision in which Mr. Lomax was killed. Mr. McGinnis and I were in my automobile behind the Lomax car. It is perfectly level at this crossing, but there is a slight decline after you get over the tracks. The tracks are straight for about 100 yards to the south, then they make a little bend. The embankment is 15 or 20 feet away from the first rail of the eastern or north-bound track. At this crossing, there is a clear space 20 feet between the rails and the edge of the embankment. In that space of 20 feet, there was nothing to prevent Mr. Lomax from seeing the approaching train from where he was standing. "I would say the train could be seen a distance of 75 yards from where Mr. Lomax was standing, down the track, if he had looked."

The evidence of the defendant, as given by eyewitnesses, is to the effect that plaintiff's intestate did not look southwardly in the direction of the approaching train before going upon the track, but that he was either talking with the young lady at his right or looking northwardly up the track in the opposite direction, and that the engineer of the passenger train duly sounded his whistle for the crossing at the whistle post.

In rebuttal, plaintiff offered James Castor, father of Miss Pauline Castor, as a witness, who testified in part as follows:

I live about 9 miles from Landis, and went down to make an inspection of this crossing about three weeks after the accident. Standing 10 feet from the railroad, I could not see the train coming because of the embankment, which had weeds and briars growing upon it, maybe 3 or 4 feet high. I did not look very closely, but you could not see the train 10 or 15 feet from the rail.

"Q. Standing 10 feet away from the track, how far could you see to the south? A. You could not see anything of the train.

Q. Standing 5 feet away from the track, how far could you see to the south? A. Down this way towards the south you could not see anything.

Q. Why? A. Trains have so much smoke.

Q. Were you there to see? A. No, sir; all trains have smoke.

Q. How far away from the accident were you when it happened. A. Eleven miles.

Q. You say that if Lomax had been close up to the railroad track he could have seen the train? A. Yes, sir.

Q. How far could he have seen it? A. Some two or three hundred yards he could have seen it, but being back 10 feet he could not.

Q. But he could have seen it before he got on the track? A. If he had been right up to the track.

Q. He could have seen it two or three hundred yards? A. Yes, sir."

The usual issues of negligence, contributory negligence, and damages were submitted to the jury and answered in favor of the plaintiff. From the judgment entered thereon, the defendant appeals, relying chiefly upon its exception directed to the refusal of the court to grant its motion for judgment as in case of nonsuit.

Linn & Linn, of Salisbury, for appellant.

J. M. Daniel, Jr., Raper & Raper, and Phillips & Bower, all of Lexington, for appellees.

STACY C.J.

It appears, from the circumstances detailed above, that, at the close of plaintiff's evidence, a clear case of contributory negligence had been made out and that the defendant's motion for judgment as of nonsuit, first interposed at that time, should have been allowed. This was practically conceded on the argument, but plaintiff stressfully contends that the testimony of James Castor, offered in rebuttal, is sufficient to carry the case to the jury, as only the exception noted at the close of all the evidence may now be considered. Harper v. Oak Ridge Supply Co., 184 N.C. 204, 114 S.E. 173.

The exception addressed to the refusal of the court to grant the defendant's motion for judgment as of nonsuit, made at the close of plaintiff's evidence, has been waived under the express provisions of the statute. C. S. § 567. The defendant had the right to rely upon the weakness of the plaintiff's case, when he rested, but the defendant, having elected to offer evidence, did so cum onere, and only the exception noted at the close of all the evidence may now be urged or considered. Nash v. Royster, 189 N.C. 408, 127 S.E. 356. In considering the last motion, the defendant's evidence, unless favorable to the plaintiff, is not to be taken into consideration, except when not in conflict with the plaintiff's evidence, it may be used to explain or make clear that which has been offered by the plaintiff. State v. Fulcher, 184 N.C. 663, 113 S.E. 769.

Conceding the soundness of the rule just stated, defendant takes the position that the answers appearing in the testimony of James Castor, which seem favorable to the plaintiff's case, are merely argumentative deductions of the witness, based on a fanciful hypothesis, as there was no evidence of any smoke, and that such deductions are without any probative value as evidence and ought not to be permitted to carry the case to the jury. A critical examination of the testimony of this witness leaves us with the impression that the defendant's view of the matter is correct.

True this witness seemingly testifies both ways, for and against each party, and such equivocation would ordinarily carry the case to the jury. Shell v. Roseman, 155 N.C. 90, 71 S.E. 86. But his statements to...