Johnson v. Seaboard Air Line Ry. Co.

• Decision Date: 22 October 1913
• Parties: JOHNSON v. SEABOARD AIR LINE RY. CO.
• Court: North Carolina Supreme Court

79 S.E. 690

163 N.C. 431

JOHNSON v. SEABOARD AIR LINE RY. CO.

Supreme Court of North Carolina

October 22, 1913

Appeal from Superior Court, Lee County; Daniels, Judge.

Action by Clarence Johnson against the Seaboard Air Line Railway Company. Judgment for the plaintiff, and defendant appeals. Affirmed in part and reversed and remanded in part, and motion for a new trial denied.

Before attempting to cross the track, a traveler must look and listen in both directions for approaching trains, if not prevented from doing so by the fault of the railroad company.

In a personal injury action against a railroad company, it is proper for the plaintiff to show, by cross-examination of a witness for the defendant, that the company furnished the witness transportation to come to the trial, as a circumstance from which bias may be inferred.

The plaintiff alleged that on or about September 1, 1910, he, a boy of about 12 years of age, was attempting to cross the track of the defendant railroad on Elm street in Maxton, N C., at a public crossing; that the defendant was engaged in making what is known as a flying switch; that it negligently ran over the plaintiff as he was crossing the defendant's tracks on said street; that his foot was injured by being run over; and that he was damaged in the sum of $20,000. The specifications of negligence in the complaint are as follows (1) The train of the defendant was operated in a negligent and careless manner and at an unlawful rate of speed. (2) Defendant had no one on the car, which struck the plaintiff to control its movements. (3) No lookout was kept on the car. (4) No warning or signal whatsoever was given of its movements or approach, and defendant was making what is known as a flying switch. (5) That the street is constantly used by the public in passing and repassing over the defendant's tracks from one side to the other, and defendant permitted a string of cars to remain standing on one of its tracks, and they so obstructed the view of plaintiff, as he approached the tracks on his bicycle, that he could not see the loose cars, as they moved toward the crossing, after being detached from the train.

The defendant answered, denying all the allegations of negligence, and alleged that plaintiff was guilty of negligence, in that he was coming down Elm street on a bicycle and crossed defendant's track, after being warned not to do so, and instead of keeping on the street, where there was no danger, he suddenly turned his wheel or bicycle, and, running parallel with the said track, he fell under the moving train, and this was the sole cause of his injury. Much evidence was introduced by the parties to sustain their respective contentions. There was evidence tending to prove the following facts: The Seaboard Air Line Railway at the crossing consists of a main line and a side track, which side track branches off west of the crossing and enters, at some distance, the cotton oil millyard; this part of the track being known as the oil mill siding, and lying on the north side of the main track, next Robert Croom's residence. A "pass track" connects the main line with the side track, leaving the main line just west of the crossing and merging with the side track upon and east of the crossing. All the tracks at one point on the crossing are only 19 feet across. Elm street at this place is a much-used thoroughfare on one of the principal residential streets, all three of the principal churches being on it and near this place. It is much used by children going to the graded school, about 200 yards away on this street, cotton oil mill employés, and citizens at large

The witness for the plaintiff, as well as the plaintiff himself, testified that the view of the pass track mentioned above, and of the main track west of Elm street, was entirely obscured by a line of standing cars on the oil mill siding, coming almost down to the street. The defendant's witnesses stated that they were making a "running switch," but that the loose car had upon it the conductor and a flagman. The evidence of the plaintiff, and of some of plaintiff's witnesses, is that there was no person on the car, and no warning was given of its approach. There is no evidence that any sufficient warning was given at this time. The defendant, however, relied upon a warning, which its evidence tended to show had been given the plaintiff when the train first arrived at Maxton, and was then some 500 or 600 feet west of the crossing, and standing still, to, "Stop! We are going to make a switch," after which, so the witness testified, he walked back some 200 feet and turned the train into the switch. Plaintiff testified that the negro was not at the crossing at all.

The witness McNeil, who made the map, testified that he did not know the width of the street; its edge was not well defined; he did not measure the distance between the south edge of the oil mill track and the north edge of the "pass track" on the west side of the street; but he used the map to illustrate his evidence as to measurements he did make. He put some designs on the oil mill track at the direction of young Johnson to represent standing cars, but did not say that the number and the exact position were directed by him.

Plaintiff testified in part as follows: "I started to Strickland's store and went on the left-hand side as you go down street towards Wilmington, Strickland's store being on the opposite side of the railroad; was going after some groceries for my mother; was on a bicycle. I went out the back yard down a path to Elm street, and went then in the usual way starting to Strickland's store, and when I came to the Seaboard crossing at Elm street near Mr. Robert Croom's residence, I found a train there, that was shifting and had blocked the crossing. I stopped for it to get out of the way. Stopped somewhere between Mr. Croom's house and the railroad. A colored woman was there, but I did not know her at that time. It was Eliza McIver. She was between me and the Seaboard track, and had a gocart with a child in it and one by it. At the time I stopped there waiting for that track to clear, I noticed on that oil mill siding some box cars. Q. How near down to Elm street did they come? A. They ran near about onto Elm street, just enough to pass by. They were shifting, and the train was running back and forth. I did not attempt to cross the street until the engine cleared and went on towards the depot with some cars attached to it. When it went by I looked and listened and started across. Q. What did you look for? A. I looked for another train. Q. Did you see another? A. No. Q. What effect if any, did those cars standing on the oil mill track have with your seeing it? A. It was between me and the loose cars. After the track was cleared and the engine had gone down towards Maxton going east, I started across the tracks. Just as I got about across, I heard some body holler, 'Lookout!' and I looked around and saw a car, and I tried to get between the tracks, and by that time it struck me. I tried to get between the main line and the side track to clear the cars so I would be safe. Q. Could you tell which track that loose car was going to take, the main line or the siding? A. No, sir. Q. If you had gotten between that main line and the side track, would you have been clear, regardless of what it took? A. Yes, I could have gone down and beaten it to where it was going. Q. What happened? A. The car struck me about that time and ran over me. I had not gotten quite clear of that side track that the car came in on. No one was at the crossing except Eliza McIver. I could not see the cars on the main line because of those box cars, and the cars that I saw were on the oil mill side track. They were not blocking the street, but they were near about on the street. I did not see any loose cars on the main line west of Elm street; I saw one down at the crossing at the oil mill. I saw no cars on the main line except that one down at the crossing. That crossing was about a block west of Elm street, and the other cars I saw were near about to Elm street on the oil mill side track. They ran near about up to Elm street, but I cannot say exactly how close, and those cars stayed on the oil mill track until after I passed over. When I started down Elm street, this colored woman, who was ahead of me, was about 10 feet from the track, and I was 10 or 15 feet behind her. I was riding a boy's bicycle and I was 12 years old at that time. I remained where I was until I saw the engine go towards the depot. I then immediately got up on my bicycle and rode across, but not until after I looked both ways and listened for another train. I crossed the railroad about the middle of Elm street and was stricken by the cars. Q. Was any one on those loose cars? A. No, sir. After the car ran over me, I got up and started home, and I saw a man who I took to be the flagman coming towards the switch. When the flagman came, I asked him to carry me home. He did not do anything, but only stood and looked at me. Mrs. Croom came out there and asked him to carry me in her house, if he would not carry me home. He stood and looked at me and did not say anything. About that time Cleo Strickland came along, and I asked him to carry me home. He said, 'All right, get up,' and I got up in the wagon, and he started on across and got to the next crossing. He started the nearest way, got to the nearest crossing, and there was a car on that crossing, and we stopped to let it pass, and the flagman came running down there and said-- they said carry me to the hospital. I think it was the flagman who said carry me to the hospital. Elm street is used for all the school children going to school, people going to the Baptist, Methodist, and...