Jeffries v. Powell

• Decision Date: 05 June 1942
• Docket Number: 450.
• Parties: JEFFRIES v. POWELL et al. BRANCH v. SAME.
• Court: North Carolina Supreme Court

20 S.E.2d 561

221 N.C. 415

JEFFRIES v. POWELL et al.

BRANCH v. SAME.

No. 450.

Supreme Court of North Carolina

June 5, 1942

Two civil actions to recover damages, in the first for wrongful death, C.S. §§ 160, 161, and in the second for personal injury, allegedly resulting from actionable negligence of defendants, consolidated by the court below for the purpose of trial.

The evidence tends to show these facts:

The plaintiff Raymond Branch sustained personal injury, and McKinley Jeffries, intestate of plaintiff Veller Jeffries administratrix, was killed on Sunday morning, May 7, 1939 about 9 o'clock, when Branch's automobile in which they were riding was struck by a fast southbound passenger train of defendants at a crossing of a dirt road, "not a public road", and the railroad track of defendants about one quarter mile south of Millbrook Station, south of Wake Forest, and north of Raleigh, in the County of Wake. Branch was sitting on the left side of and operating the automobile and Jeffries as the guest of Branch, was sitting on the right side. The railroad runs north and south. The automobile approached from the east.

The crossing is described by some of the witnesses for plaintiffs as being in a curve of the railroad, though no one of them was willing to venture an estimate of the extent of the curve. On the other hand, a civil engineer, witness for defendants, testified that there is actually a 45 minute curve, that is, the curve deflects about 8 inches to the right in every 100 feet and in a long segment "it picks up to where you can see a slight curve". Also, a witness for plaintiffs testified that standing on the track one could see as far as Millbrook station.

The dirt road leads from two houses, the homes of the father and uncle of plaintiff Branch, situated on the east side of the railroad, the former being "something like 300 feet therefrom", to and across the railroad, and thence through the property and yard of O. A. Norwood to U. S Highway #1, "not a quarter mile out there" west of the railroad. As described by plaintiff Branch, "It is not a public road, just a road for the outlet of the people *** just a small road *** the best path out".

The crossing was first put there about 30 years ago, but was taken out two or three year before Norwood bought the place after which, according to testimony of father of plaintiff Branch, Norwood had a second one put in by the railroad section force, and had permitted the use of it for the last five or six years.

On each side of the main line track at the crossing there is a side or passing track, the main line being some higher than the side tracks. Evidence for plaintiffs tends to show that the side track on the east is 6 or 8 feet from the main line, but, according to the civil engineer, witness for defendants, there are actually 13 feet between the east side track and the center line of the main track.

The dirt road as it leads from the Branch home to the crossing is described as being an S-curve beside the railroad. It starts at the bottom of the letter, runs east nearly to the railroad, then turns south in the general direction of the railroad, crosses a bridge, then veers to the left, and on uphill curve to the right to the crossing, and straightens out about 30 or 40 feet from the track at the crossing. After passing the bridge and veering to the left there are an oak tree and some bushes standing on the right side of the road 42 feet from the main track of the railroad, according to evidence for plaintiffs, and by actual measurement 66 feet east of a point 65 feet north of the crossing, according to the civil engineer, witness for defendants. All the evidence tends to show that after passing this oak and the bushes in approaching the crossing from the east there was no other obstruction on the right or, as expressed by deputy sheriff Maynard, witness for plaintiffs, "no more bushes, no more anything except air toward Wake Forest".

Plaintiff Branch testified: "When I could first see by this tree and bushes we were something like 30 or 40 feet from the main line track". Yet he says, "When I got by the bushes toward Wake Forest I could see about 50 feet, I imagine, down the track". Also, there is testimony of three other witnesses, who made observations at the scene, who give various estimates of distances north of the crossing that the track was observable after passing the tree and bushes. But all hands agree that there is no obstruction on the right of the road between the tree and bushes and the railroad. Too, all agree that as one approaches the track view may be had farther down the track. The witness deputy sheriff Atkins testified: "When you pass the bushes you could see approximately 80 or 85 feet down the rails *** when you got 20 feet of the track, I didn't measure it, but you could see a good distance from there, about 150 feet *** when you are 10 feet from the track I don't think there is anything to keep you from seeing all the way down, because the right of way is open on both sides".

Furthermore, in the opinion of the father of plaintiff Branch: "You have to come near getting on the side track before you can get a good view of the railroad. When you get on the side track you have a pretty good view as far as the planer". That distance according to the civil engineer, witness for defendants, is about 1,200 feet.

On the other hand, the civil engineer, witness for defendants, testified, that standing in the road at a point 50 feet from the crossing the full view could be had of a man standing on the track north of the crossing at a distance of 850 feet by actual measurement, beyond which the person began to disappear from the feet up as he moved to the north, and at a distance of 25 feet from the track the station at Millbrook could be seen. This witness further testified that while sitting in his car in the road 50 feet east of the crossing, he observed the approach of both a freight and a passenger train from the north, and that he could see "right much of the top of the engine" at about 1,400 feet, "over half the engine" at about 1,200 feet, and "all the engine" at 925 feet north of the crossing.

Plaintiff Branch gives a narrative of the accident. On direct examination he testified: "The road *** goes up a little knoll with bushes on both sides. I bears right and gets straight to go across the railroad and just as I get by these bushes and there you are on the track. I peeps around to see what was coming. I was listening all the time, too. I peeped around to see what was coming and there the train was and the train caught us right there. It knocked me unconscious and killed McKinley Jeffries. As I turned here and started up towards *** the crossing, my back was exactly to the train *** I guess I was driving about 5 or 10 miles an hour as I approached the crossing *** in second gear ***. When I got by the tree I didn't see anything, no train in sight neither did I hear one. I proceeded on the track and when I crossed the first side track *** I looked around, nothing coming from Raleigh, and when I peeps around McKinley, the train was there and nothing we could do. *** When I crossed the track next to main line, there was no train in sight at that time. *** It was Sunday when I had the wreck and it was Sunday when I remembered *** I didn't know what happened to me, whether the train hit me or not." Then on cross examination, in answer to question, "What kept you from seeing the train?", he said, "It hadn't got up there"; and then, in substance, that if the train was on the track it was out of sight, and it would be out of sight 75 feet down, "unless you were on the track-main line", and, continuing, "I can't remember seeing any train, only thing I know is they say the train hit us. The way it hit us it couldn't be running no slower than 70 miles. I didn't see it. That is what I told the Coroner when I was examined before him; told him I never had seen the train *** that 'all that time I didn't hear any train, so when I got to the railroad I took right across and when I started across I don't know anything else. That is the last that I can remember'. I didn't hear anything and nothing...