Herman v. Atlantic Coast Line R. Co.

• Decision Date: 20 November 1929
• Docket Number: 282.
• Citation: 150 S.E. 361,197 N.C. 718
• Parties: HERMAN v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

150 S.E. 361

197 N.C. 718

HERMAN v. ATLANTIC COAST LINE R. CO.

No. 282.

Supreme Court of North Carolina

November 20, 1929

Appeal from Superior Court, Cumberland County; Cranmer, Judge.

Action by A. S. Herman against the Atlantic Coast Line Railroad Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Alleged negligent failure of railroad company to ring bell or sound whistle held not proximate cause of injury to occupant of automobile, driven against train, due to driver's excessive speed.

Civil action to recover damages for an alleged negligent injury caused by a collision between an automobile in which plaintiff was riding and one of the defendant's trains. The evidence discloses that the automobile in which plaintiff was riding when it collided with the defendant's locomotive at a highway crossing in the village of Raynham Robeson county, was running about 30 or 35 miles an hour; it skidded approximately 90 feet, presumably due to the driver's effort to stop, before striking the rear driving wheel, just under the fireman's seat. "I saw the car hit and rear up like a bucking horse," said one of the plaintiff's witnesses. The train was approaching, slowing down for the station stop, at a rate of from 10 to 12 or 15 miles an hour.

Judgment of nonsuit was entered at the close of plaintiff's evidence, on the theory that the sole proximate cause of plaintiff's injury was the negligence of the driver of the car in which plaintiff was riding. Plaintiff appeals assigning error.

S. Burnell Bragg, of Norfolk, Va., and Dye & Clark, of Fayetteville, for appellant.

Rose & Lyon, of Fayetteville, for appellee.

STACY C.J.

We fail to discern from the record any evidence of negligence on the part of the railroad company which contributed to the plaintiff's injury. Even if the engineer or fireman did fail to ring the bell or sound the whistle, of which there is only negative testimony, with positive evidence to the contrary, still the defendant had a right to operate the train over its track, and the negligence of the driver of the automobile is so palpable and gross, as shown by plaintiff's own witnesses, as to render his negligence the sole proximate cause of the injury. Construction Co v. Railroad, 184 N.C. 179, 113 S.E. 672. Upon all the evidence, we think it is manifest that the alleged negligence of the defendant, Atlantic Coast Line Railroad Company, was not in law a proximate cause...