Johnson v. Atlantic Coast Line R. Co.

• Decision Date: 12 July 1933
• Docket Number: 99.
• Citation: Johnson v. Atlantic Coast Line R. Co., 205 N.C. 127, 170 S.E. 120 (N.C. 1933)
• Parties: JOHNSON v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

170 S.E. 120

205 N.C. 127

JOHNSON v. ATLANTIC COAST LINE R. CO.

No. 99.

Supreme Court of North Carolina

July 12, 1933

Appeal from Superior Court, Halifax County; Shaw, Emergency Judge.

Action by Jerry Florence Johnson, administratrix of Lucius D Johnson, deceased, against the Atlantic Coast Line Railroad Company.From a judgment for plaintiff, defendant appeals.

No error.

Whether automobile guest's death in crossing collision was proximately caused by train's violation of ordinance limiting speed of trains or by failure to give timely warning or keep proper lookout held for jury.

This is an action to recover damages for the death of the plaintiff's intestate alleged to have been caused by the negligence of the defendant.

In the afternoon of January 15, 1932, between 6 and 7 o'clock an automobile owned and driven by Walter G. Young, in which the plaintiff's intestate was riding as a guest, was struck by an engine of the defendant at a grade railroad crossing in the town of Enfield, and both occupants of the car were killed.

The automobile was a one-seated coupé, the driver sitting at the wheel on the left and the plaintiff's intestate on the right.At the place of collision the defendant maintains two contiguous railroad tracks extending north and south south-bound trains using the west track and north-bound trains using the east track.About 75 yards south of the crossing there is a switch or spur track on which some cars were standing at a distance of 70, 80, or 90 yards from the scene of the accident.

Burnette avenue, 27 feet wide, crosses the two railroad tracks and runs east and west.It is used by the public; probably 100 or 150 automobiles and other vehicles pass over the crossing during the day and night.On each side of Burnette avenue is a sidewalk about 4 1/2 feet in width.On the west side of the crossing an extension of Main street runs north and south, parallel with the railroad tracks, the distance from the sidewalk to the south-bound track being about 40 feet.It is 6 feet from the south-bound to the north-bound track.

Only two witnesses testified to the material facts relating to the collision, Ben Dunn and Stephen Sneed.The former said: "I was standing on the east side of the track about 35 or 40 yards from the crossing.*** It was about good dark.One train had passed up to the next crossing and one was coming.*** The southbound train had passed 85 yards south of the crossing when the northbound engine and caboose came together.I was not looking to the west when the trains passed.I was just noticing the trains and looking at them when coming down the sidewalk, and heard the northbound man blow a crossing blow a good big block away.*** Just as soon as the southbound train passed, I looked and saw the automobile easing toward the track, the northbound train was about 85 yards.This train was running about 40 miles per hour.I did not hear a bell, did not hear anything but a crossing blow a block away, about 125 or 150 yards.When the northbound train blew, the caboose of the southbound man had not gotten quite in contact with the engine of the northbound man when it blew for the crossing.I do not think the northbound train slowed down at all before the collision.The train hit the right hand rear wheel of the automobile, twisting it around and turned it over twice, and of the two men in it, one was killed instantly; one was knocked out and the other was hanging.The train ran one and one half blocks before it stopped, about 125 yards.The brakes were put on by the engineer as soon as he hit the men.There was no electric signal or electric gong, only a cross-arm to indicate there was a crossing, just like you see at any other crossing.When I saw the automobile approaching the crossing, it was running 8 or 10, not over 10 miles an hour, very slowly.The automobile was 46 feet from the northbound track on which it was struck when I first saw it.*** Between the time I saw the northbound engine pass the southbound caboose and when I saw the car easing into Main Street, I walked 15 yards.When I saw the train coming and the automobile approaching that street crossing, going across Main Street, I hollered at the man: 'Hey, there's a train coming.'I don't think he heard me as he did not regard what I said.The door of the car was not open; no one attempted to get out; its speed did not slacken or increase and it did not swerve to the right or left.The headlight of the northbound train was burning brightly, and the whistle sounded for the regular crossing blow for Burnette Avenue where they usually blow.When I hollered at the driver of the car, it was moving along.There was no other noise in the immediate vicinity besides the sound of my voice and the noise of the train which I reckon was a 40 or 45 car freight train.I did not see anybody in the car at the time I hollered to them, or at the time I was approaching the crossing, nudge the driver; nor did I see them raise their hands or point to the train."

Stephen Sneed was on the east side of the railroad, intending to cross the track in his car when he saw the approaching train.He testified: "When I did look at the crossing I saw this car on the other side coming towards me.When I took my eyes off the train and looked back at the crossing, the man was right between the four rails coming towards me when I looked the second time.At that time the northbound train was up the track from the automobile as far as from here to the back door (of the Courthouse).I looked back again at the train and it was easing up on it, and *** it struck the back of the car at the fender, right at the wheel.It knocked it around and turned it over, it seemed to me, twice.*** It was dark where the car was.*** The brakes were put on after the train hit the car.I could not see that the train slowed down any before it hit the car.*** It was running around 35 miles an hour or perhaps more.I did not hear any bell or whistle and there was not any electrical signal or watchman to warn anybody at the crossing.I stopped on the other side; was not directly in the street *** I could have heard the whistle if it had blowed; my engine could not keep enough fuss to keep me from hearing it.I heard the train coming, saw the headlight, and stopped my car for it to pass.*** When I first looked the car was on the concrete, had not entered the track.I judge the train was 75 feet or more coming to the crossing.*** There was not a thing between the car and the train to keep the driver from seeing the train.When he was back ten feet further, there was nothing between him and the train to keep him from seeing the train.*** He could have seen that headlight."

The plaintiff offered in evidence an ordinance of the town of Enfield making it unlawful for any railroad or railway company to run its trains through the corporate limits of the town at a greater rate of speed than 15 miles an hour, except between the hours of 10 p. m. and 6 a. m.The defendant did not introduce any witnesses.

The usual issues of negligence, contributory negligence, and damages were answered against the defendant.Judgment for plaintiff; appeal by defendant upon assigned error.

Thos. W. Davis, of Wilmington, Dunn & Johnson, of Enfield, and Spruill & Spruill, of Rocky Mount, for appellant.

George C. Green, of Weldon, and Thos. W. Ruffin, of Raleigh, for appellee.

ADAMS Justice.

The defendant suggests that two inquiries with their necessary implications are sufficient to present the merits of the appeal:

1.Did the court err in overruling the defendant's motion to nonsuit the action at the close of the evidence?

2.If the demurrer to the evidence was properly overruled, did the court err in peremptorily instructing the jury to answer the issue of contributory negligence in the negative?

The first inquiry raises the two questions whether there is evidence of the defendant's actionable negligence and whether there is evidence of such contributory negligence on the part of the plaintiff's intestate as will bar the recovery of damages; the other has reference to the court's withholding from the jury the question of negligence on the part of the intestate.

The trial court restricted the consideration of the jury to...