Hinnant v. Atlantic Coast Line R. Co.

• Decision Date: 06 April 1932
• Docket Number: 63.
• Citation: Hinnant v. Atlantic Coast Line R. Co., 202 N.C. 489, 163 S.E. 555 (N.C. 1932)
• Parties: HINNANT v. ATLANTIC COAST LINE R. CO. et al.
• Court: North Carolina Supreme Court

163 S.E. 555

202 N.C. 489

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

No. 63.

Supreme Court of North Carolina

April 6, 1932

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 defendantEnoch 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 defendantAtlantic 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 partydefendant from whom he is entitled to redress."

The defendants filed demurrers to the complaint.The defendantEnoch King demurred to the complaint on the ground of misjoinder of partiesdefend...