Hinton v. Southern Ry. Co

• Decision Date: 29 November 1916
• Docket Number: (No. 391.)
• Citation: Hinton v. Southern Ry. Co, 172 N.C. 587, 90 S.E. 756 (N.C. 1916)
• Court: North Carolina Supreme Court
• Parties: HINTON. v. SOUTHERN RY. CO.

(172 N.C. 587)

90 S.E. 756

HINTON.

v.SOUTHERN RY. CO.

(No. 391.)

Supreme Court of North Carolina.

Nov. 29, 1916.

Appeal from Superior Court, Guilford County; Cline, Judge.

Action by Mrs. Minnie Dick Hinton against the Southern Railway Company. From judgment for plaintiff, defendant excepts and appeals. No error.

Civil action to recover for alleged negligent injuries to plaintiff and to her automobile, which plaintiff was driving at the time, tried before his honor, E. B. Cline, judge, and a jury, at March term, 1916, of the superior court of Guilford county. There was denial of liability by defendant and, on the trial, the jury rendered the following verdict:

"First. Was the plaintiff and her automobile injured by the negligence of the defendant, as alleged in the complaint? Answer: Yes.

"Second. Did the plaintiff, by her own negligence, contribute to her own injury, as alleged in the answer? Answer: No.

"Third. What damages, if any, is the plaintiff entitled to recover on account of any personal injuries? Answer: $200.00.

"Fourth. What damages, if any, is the plaintiff entitled to recover on account of any injury to her automobile? Answer: $306.00."

Judgment on the verdict for plaintiff, and defendant excepted and appealed.

Wilson & Ferguson, of Greensboro, for appellant.

John A. Barringer, of Greensboro, for appellee.

HOKE, J. The facts in evidence on the part of plaintiff tended to show that, on May 11. 1915, she was driving her automobile along Summit avenue, in the city of Greensboro, and towards the crossing of that street over the defendant railroad; that it is a much frequented crossing, with buildings extending up near the railroad, shutting off the view of the railroad tracks for persons traveling on the highway, and for these reasons there are gates provided to be let down and bar the approach, and also a tower and watchman, the latter having full view of both railroad and highway, who operates these gates, and also a gong for the purpose of giving travelers warning of trains to persons who may be on the highway, approaching the crossing; that on the occasion in question, plaintiff was running her car at the rate of 10 to 15 miles per hour, having the same under good control, and, hearing no gong nor signal, she approached the crossing with a purpose of going over, and, when she was in 25 or 30 feet of the gates, they were suddenly lowered, and a freight train "rushed instantly by" without any warning having been given; that, in order to avoid running on the gates and a probable collision with the passing train, plaintiff turned her machine square to the right, and in doing so ran the same into a building, 19 or 20 feet off, and in doing so received the injuries and damage complained of; that the car, under ordinary conditions and at the speed it was moving, might have been stopped in 25 or 30 feet, but it struck before plaintiff was able to stop it, and the injuries occurred as stated. There was evidence on the part of the defendant to the effect that proper signal warnings were given, and, further, that the car left the street about 81 feet from the gate, and that the same could have been stopped and the injuries avoided by the exercise of ordinary care and firmness on the part of the plaintiff.

Under a charge free from error, in the ordinary aspects of such a case, the jury, accepting plaintiff's version of the occurrence, have established that plaintiff was injured by reason of defendant's negligence; that plaintiff herself was free from blame at the time, and has suffered the damage as alleged in the complaint. Judgment having been entered on the verdict, defendant appeals, and assigns for error that the cause should have been nonsuited on his motion, for the reason, solely, that plaintiff, at the time, by her own testimony, was approaching the crossing at a rate of speed forbidden by the statute. The law in question (chapter 107, Laws 1913) makes...