Jernigan v. Atlantic Coast Line R. Co., 686SC239
| Decision Date | 15 January 1969 |
| Docket Number | No. 686SC239,686SC239 |
| Court | North Carolina Court of Appeals |
| Parties | Cecil D. JERNIGAN, Jr. v. ATLANTIC COAST LINE RAILROAD COMPANY. |
Allsbrook, Benton, Knott, Allsbrook & Cranford, by Richard B. Allsbrook, Roanoke Rapids, for plaintiff appellant.
Spruill, Trotter & Lane by Charles T. Lane, Rocky Mount, for defendant appellee.
In considering a motion for judgment of nonsuit made by a defendant, all of the evidence favorable to the plaintiff must be taken as true and interpreted in the light most favorable to him. Champion v. Waller, 268 N.C. 426, 150 S.E.2d 783; Lienthall v. Glass, 2 N.C.App. 65, 162 S.E.2d 596.
The evidence presented at the trial below would permit the jury to find the following to be the facts in this case:
On the night of 6 October 1961, the plaintiff and one other person had been working on a cottage located on the Roanoke River near Weldon, North Carolina. At approximately 1:00 a.m. on 7 October 1961, the plaintiff left the cottage to take his helper to his car. They traveled west on West Third Street. When they came to the railroad crossing proviously described, a flagman stopped them. The train, at this time was 'just sitting' on the track. Plaintiff and his helper waited approximately five minutes before the engine moved and the flagman waved them on. The plaintiff traveled approximately two miles of West Third Street (the same as Highway 158) toward Roanoke Rapids. After putting his helper out, he drove east on Highway 158, or West Third Street, back toward Weldon and the railroad crossing. He was traveling at approximately 35 miles per hour when he crossed the hill crest located approximately 100 yards west of the railroad crossing and started down the decline. He began reducing his speed. He could not see the railroad tracks before he crossed this hill crest. He slowed down further as he was under the overhead trestle located approximately 72 feet west of the railroad tracks. At this point the plaintiff, looking east, could see both sides of the street beyond the railroad tracks. He could see a stop light located on Washington Avenue, lights under a service station located just east of the railroad tracks, and street lights located on West Third Street, east of the railroad crossing; however, none of these lights threw any light on the railroad tracks. As the plaintiff moved under the overhead trestle and toward and railroad tracks, he was traveling approximately 15 miles per hour. When he was approximately 10 feet from the third set of railroad tracks he first saw the train engine. It was projecting approximately five feet into his lane of travel and was not in motion. Plaintiff applied his brakes, but did not stop in time; his automobile struck the engine, and, as a result, the plaintiff was seriously injured. At the time of the accident, plaintiff's eyes were in excellent condition and the headlights on his car were in good working order. His headlights did not pick up the train until he was at the bottom of the hill and started across the railroad tracks; at this point the engine was directly in front of him. The plaintiff did not see any lights on the engine, nor did he hear a whistle or other warning before the collision. Also, the defendant did not have a flagman at the crossing.
Other evidence, offered by the plaintiff, tended to show that it was the practice of the railroad to have flagman at the crossing whenever the train was there.
The engine was black with reflectorized stripes running the full length of the engine. The plaintiff had lived in Weldon for approximately 10 years, was aware of the railroad crossing, and was aware that it was the practice of the railroad to use a flagman at this crossing. There is a round yellow sign, indicating a railroad crossing, approximately 500 feet west of where the accident occurred. There is another cross arm sign, indicating a railroad crossing ahead, just west of the overhead trestle.
While the evidence presented by the plaintiff raises sufficient inferences of negligence on the part of the defendant railroad for submission of the question to the jury, it has long been the rule in this State that judgment of nonsuit is proper when the plaintiff's evidence, taken in the light most favorable to him, shows negligence on his part, and that this negligence was a proximate cause, or one of the proximate causes, of the injury for which the plaintiff seeks to recover. The plaintiff's evidence must show contributory negligence on his part so clearly that no other conclusion can be reasonably drawn therefrom. Price v. Seaboard Air Line Railroad, 274 N.C. 32, 161 S.E.2d 590; Ramey v. Southern R.R., 262 N.C. 230, 136 S.E.2d 638; Herndon v. R.R., 234 N.C. 9, 65 S.E.2d 320; Godwin v. Atlantic Coast Line R.R., 220 N.C. 281, 17 S.E.2d 137.
Ramey v. Southern R.R., supra.
The evidence in this case, when taken in the light most favorable to the plaintiff, shows that the plaintiff could see the railroad tracks when he crossed the crest of the hill. His view of the tracks was completely unobstructed after he went under the overhead trestle, a distance of 72 feet from where the accident occurred. There were signs which gave warning that there was a railroad crossing ahead, and further, the plaintiff was familiar with this crossing through past experiences.
A railroad crossing is itself notice of danger. When a person has knowledge that a railroad crossing lies ahead he must exercise due care and diligence to protect himself. Bennett v. Southern R.R., 233 N.C. 212, 63 S.E.2d 181; Price v. Seaboard Air Line Railroad, supra.
* * * '' Godwin v. Atlantic Coast Line R.R., supra.
Speaking on the right of a person to rely on the custom of the railroad to use a flagman at a crossing, our Supreme Court in Ramey v. Southern R.R., supra, said:
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