Appeal
from Superior Court, Nash County; Harris, Judge.
Action
by William Turner Hinnant against the Atlantic Coast Line
Railroad Company and Enoch King. From a judgment overruling
demurrers to complaint of both defendants, they appeal.
Reversed
as to first-named defendant, and affirmed as to second-named
defendant.
In
automobile passenger's action for injuries in collision
with train, for negligence of driver to be sole proximate
cause of injuries it must be palpable and gross.
Guest
in automobile striking train could not recover against
railroad, if driver's negligence was sole proximate cause
of injury.
The
plaintiff alleged that on May 31, 1930, at about 9
o'clock in the morning, he was a guest, riding in an
automobile owned and controlled by the defendant Enoch King
and at the time was not engaged in a joint enterprise with
said driver; that the car was traveling westwardly along the
public highway and approaching a grade crossing of the
defendant Atlantic Coast Line Railroad Company. The track of
the railroad at the point where the injury occurred runs
northwardly and southwardly. It is alleged: "At this
crossing the railroad track runs through a cut and the public
road has been graded down through the cut across the railroad
track so that the view of the railroad employees operating
its trains and of persons passing along the public road
approaching said track from the east, was obstructed by a
bank of earth and shrubbery growing thereon, sufficiently
high to make said crossing a blind crossing. The public road
passes over the crest of a hill about 300 feet east of said
railroad track and from the crest of said hill the road is an
inclined plane to said railroad track, the hill being about
22 1/2 feet higher than the track. As the automobile
approached the crest of the hill a large sign indicating that
a railroad crossing was ahead, appeared on the north side of
said road, which sign was erected between the crest of the
hill and the railroad track high enough to be plainly
visible. As defendant, King, drove his automobile over the
crest of the hill the crossing sign was even more plainly
visible between the automobile and the railroad track; and
the track itself, as well as telegraph poles alongside of it
and the crossing sign on the other side, were plainly visible
to the driver of the automobile. Plaintiff knew defendant
King, was a good and experienced driver and had no reason
whatever to suppose that the said King did not see the
crossing sign and the railroad track in front of him, or that
said King would not take the precaution made necessary
thereby. The automobile proceeded at the rate of 25 or 30
miles per hour over the crest of the hill towards the track
and down the grade. There was nothing to indicate by sight or
sound that a train was approaching the crossing on the
railroad track until the automobile was 69 feet from the
eastern rail of the track, when a ninety-one car freight
train with a heavy locomotive belonging to the defendant
railroad, going north, burst into view at the crossing
appearing suddenly to plaintiff and defendant King from
behind the embankment to their left, without having blown any
whistle or rung any bell, or given any other sign or warning
of its approach, and going at high speed. The weather was
wet, the public road was slick, and the grade was steep, and
defendant King was driving his automobile in a deep rut of
wet clay, some 25 or 30 miles per hour, so that, although
defendant King applied his brakes, he was unable to turn out
of the rut or bring his automobile to a stop before the car
collided with the first or second freight car behind the
locomotive, in the defendant railroad's train. The
defendant King, before the moment of the impact and for the
purpose of saving himself from a position of peril, produced
by the joint negligence of himself and the railroad company
released his brakes and jumped out of the automobile on the
left hand side thereof; and as soon as this plaintiff saw
that defendant King has released his foot brake and had
abandoned all effort to avoid the collision by jumping out of
the car, then this plaintiff endeavored to leave the car on
the right side thereof, but found the door locked and the
lock out of order so that it could not be opened from the
inside, and then endeavored to leave the car on the left
side, and was leaving same when one of his pants legs caught
on the emergency brake lever of the automobile, and his foot
was caught between the said lever and door frame, at the
instant he jumped from the car, so that plaintiff was pitched
out head foremost on the ground with his foot caught up in
the car just at the moment the front of the automobile hit
the train, causing the automobile to swing around against the
plaintiff and throw plaintiff under the train in such a way
that plaintiff's left foot was crushed by the wheels of
the train, and also his leg between the ankle and the knee
and his head bruised externally and internally, and back and
shoulder wrenched," etc. Plaintiff further alleged that
his serious and permanent injuries were due to the joint
negligence of the railroad company in failing to give a
signal at an obstructed crossing. He further alleged that the
defendant King "did not keep careful lookout and
negligently failed to observe the crossing signs and the
presence of the railroad track at the foot of the hill, and
continued driving his car down grade toward the track at such
rate of speed that under the condition of the road at the
time he was unable by applying his brakes to stop his car or
turn it aside out of danger in the space of 69 feet; that due
to his carelessness and negligence in failing to keep a
proper lookout he was traveling at such a rate of speed that
he was unable to bring the speed of his car down to 15 miles
per hour when approaching within 50 feet of said grade
crossing, notwithstanding that his view was obstructed within
the meaning of Code 1931, § 2621 (46) and was unable to bring
his automobile to a stop within 50 feet but not closer than
10 feet from said railroad track as required by law, said
crossing being signposted, both of which violations of law
were the necessary result of his prior negligence in not
exercising the care required of an ordinarily prudent man in
keeping a lookout along the road; that if plaintiff was not
injured by the negligence of both defendants, they being
joint tort feasors, as alleged, then the plaintiff
was injured by the negligence of either Atlantic Coast Line
Railroad Company or Enoch King, and in that event plaintiff
is in doubt as to the party defendant...
