Johnson v. Southern Ry. Co., 20

• Citation: 255 N.C. 386,121 S.E.2d 580,90 A.L.R.2d 344
• Decision Date: 27 September 1961
• Docket Number: No. 20,20
• Court: North Carolina Supreme Court
• Parties: , 90 A.L.R.2d 344 William V. JOHNSON v. SOUTHERN RAILWAY COMPANY and Atlantic Coast Line Railroad Company.

Page 580

121 S.E.2d 580

255 N.C. 386, 90 A.L.R.2d 344

William V. JOHNSON v. SOUTHERN RAILWAY COMPANY and Atlantic Coast Line Railroad Company.

No. 20

Supreme Court of North Carolina.

Sept. 27, 1961

Phil P. Godwin, Gatesville, Thos. L. Woodward, Suffolk, Va., and John H. Hall, Elizabeth City, for plaintiff, appellant.

Joyner, Howison & Mitchell, Raleigh, for defendant Southern Ry. Co., appellee.

Godwin & Godwin, Gatesville, and Rodman & Rodman, Washington, for defendant Atlantic Coast Line R. Co., appellee.

MOORE, Justice.

It is admitted in the pleadings that the railroad is owned by the Atlantic Coast Line Railroad Company (hereinafter referred to as A. C. L.), that the Southern Railway Company (hereinafter called 'Southern') by agreement with A. C. L. operates freight trains on and over this railroad, and that the freight train involved in the alleged collision was owned and operated by Southern.

'It is a well-established principle of law that a railroad company which admits another railroad company to the joint common use of its tracks is liable for the negligent acts of such company in the enjoyment of such use, although it was guilty of no negligence or breach of duty on its own part, and such liability is not affected by the fact that the company using the tracks is also liable * * *.' 74 C.J.S. Railroads § 364a, p. 895.

Appellant alleged and offered proof of negligence on the part of defendants in the following respects: (1) Southern's train which struck plaintiff's vehicle at the crossing did not give warning of its approach either by ringing bell, sounding gong, or blowing whistle; (2) the automatic signal light maintained by A. C. L. at the crossing failed to work and give warning of an approaching train; and (3) the train approached from the north, and in that direction the view was obstructed. Defendants alleged that plaintiff was contributorily negligent in that he failed to keep a proper lookout and drove upon the crossing without taking reasonable precautions to discover the peril and avoid collision.

'When approaching a public crossing, the employees in charge of a train and a traveler upon the highway are charged with the mutual and reciprocal duty of exercising due care to avoid inficting or receiving injury * * *.' Morre v. Atlantic Coast Line R. R., 201 N.C. 26, 29, 158 S.E. 556, 557. The train has the right of way, but the law imposes upon the engineer the duty to give the usual and customary warning of the train's approach and to exercise vigilance in approaching crossings in order to avoid injury. A traveler on the highway has the right to expect timely warning. But the failure to give such warning does not justify the traveler in relying upon such failure or in assuming that no train is approaching. Before attempting to go upon or 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; and this should be done before he has taken a position exposing him to peril, and at a point where lookout will be effective. Parker v. Atlantic Coast Line R. R., 232 N.C. 472, 61 S.E. 2d 370; Godwin v. Atlantic Coast Line R. R., 220 N.C. 281, 17 S.E.2d 137; Harrison v. North Carolina R. R., 194 N.C. 656, 140 S.E. 598; Johnson v. Seaboard Air Line R. R., 163 N.C. 431, 79 S.E. 690; Coleman v. Atlantic Coast Line Railroad Company, 153 N.C. 322, 69 S.E. 251; Cooper v. North Carolina Railroad, 140 N.C. 209, 52 S.E. 932, 3 L.R.A.,N.S., 391; Norton v. North Carolina R. R., 122 N.C. 910, 29 S.E. 886.

'While it should not be understood that the failure of a signaling device maintained at a crossing to work at any particular time necessarily constitutes negligence on the railroad's part under all circumstances, * * * such a failure has been very generally held or regarded to be a breach of duty toward a person relying upon such signal, and consequently at least evidence of negligence, which may be taken into consideration along with other alleged acts of negligence, particularly where the device has been out of repair for a considerable period of time and the railroad has had notice of its defective condition.' Annotation 99 A.L.R. Railroad Crossing--Signal Device, s. II, pp. 729, 730.

The mere momentary failure of an automatic signaling device to operate upon the occasion of an accident is not evidence of negligence on the part of the railroad company. Res ipsa loquitur has no application in such circumstance. Vaca v. Southern Pac. Co., 1928, 91 Cal.App. 470, 267 P. 346. But it is proper to consider such failure in measuring the care exercised by the traveler in negotiating the crossing, and it is therefore relevant on the question of contributory negligence. Southern Pac. Co. v. Kauffman, 9 Cir., 1931, 50 F.2d 159. A traveler on a highway has the right to place some reliance upon an automatic crossing signal, especially if his view is obstructed. Southern Ry. Co. v. Whetzel, 1933, 159 Va. 796, 167 S.E. 427. But the fact that an automatic warning signal is not working does not relieve the traveler of the duty to look and listen for approaching trains when from a safe position such looking and listening will suffice to warn him of danger. Price v. Chicago & E. I. Ry. Co., 1933, 270 Ill.App. 111; Calloway v. Pennsylvania R. Co., 4 Cir., 1932, 62 F.2d 27; Kindig v. Atchison, T. & S. F. Ry. Co., 1931, 133 Kan. 459, 1 P.2d 75. Where there are obstructions to the view and the traveler is exposed to sudden peril, without fault on his part, and must make a quick decision, contributory negligence is for the jury. Southern Ry. Co. v. Davis, 1929, 152 Va. 548, 147 S.E. 228.

In the instant case the evidence, when taken in the light most favorable to plaintiff, is sufficient prima facie to establish that defendants were negligent and that such negligence was a proximate cause of the collision. Decision turns upon the question as to whether or not plaintiff was contributorily negligent as a matter of law.

The railroad runs north and south. U.S. Highway 158 runs east and west and crosses the railroad at grade. 158 is a two-lane highway. Plaintiff was headed west. He stopped the pickup about 30 feet before reaching the railroad track and in his proper lane of travel. He looked in both directions and listened. The railroad station is about 300 feet north of the crossing and about 12 feet east of the main track. To the north of the station is a pile of sawdust or chips. A spur track runs between the station and the main track, parallels the latter, and ends near the highway but does not cross it. The main and spur tracks are about 6 feet...