Kimbrough v. Hines

• Decision Date: 10 November 1920
• Docket Number: 262.
• Parties: KIMBROUGH v. HINES, DIRECTOR GENERAL OF RAILROADS, ET AL.
• Court: North Carolina Supreme Court

104 S.E. 684

180 N.C. 274

KIMBROUGH v. HINES, DIRECTOR GENERAL OF RAILROADS, ET AL.

No. 262.

Supreme Court of North Carolina

November 10, 1920

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

Action by J. W. Kimbrough against Walker D. Hines, Director General of Railroads, and the Atlantic Coast Line Railway Company. Judgment for plaintiff, and defendants appeal. New trial.

Clark C.J., and Allen, J., dissenting.

Where a conflict occurs between instructions, a new trial is granted because the jury are not competent to decide which instruction is correct or which is incorrect.

Plaintiff brought this action to recover damages for personal injuries sustained at Selma, N. C., January 27, 1919, as the result of a collision at a public crossing between the automobile which he was driving and a train on the track of the Atlantic Coast Line Railroad Company, which was being operated by the United States Railway Administration. There was testimony on behalf of plaintiff that the train was running at a speed of 30 or 40 miles an hour; that no signal of approach to the crossing was given by whistle or bell; that the view of the track was cut off by a string of cars on a spur track, and that these cars extended two or three feet into the public road. Plaintiff testified that he looked and could not see down the track in the direction from which the train was coming, because his view was obstructed by the cars on the spur track.

There was testimony on behalf of defendant that the cars on the spur track did not obstruct the plaintiff's view of the train; that notice of the approach of the train had been given by blowing the whistle and ringing the bell; and that the speed of the train did not exceed 10 or 12 miles an hour.

The defendants pleaded the plaintiff's contributory negligence as a defense, and contended at the trial that the failure of the plaintiff to stop before entering upon the track, when it was his duty to do so, was the proximate cause of his injury.

There was evidence that plaintiff was familiar with the crossing having passed over it on the morning of the accident on his way from Raleigh to Pine Level. He knew that he was approaching a crossing, and says he slowed down. In describing the condition at the crossing and the circumstances of the accident, he says:

"There were 8 or 10 box cars on the track connecting the Coast Line and Southern Railways. The doors of the box cars were closed, and I could not see through them. The first box car was on the crossing 2 or 3 feet. I had to turn my car to get around it. There were some 8 or 10 cars back on the connecting track that prevented me from seeing the train coming toward the crossing from the south, and I came along up to the crossing and slowed the car down, and did not hear anything, and just as I passed the car the engine struck me, and carried me down the track. I listened for the train. I could not see the track at any point to the south. I did not hear the whistle blow, and there was no sound of bell. I listened and looked all I could. I thought there might be a shifting engine going by. As I came toward the track at Selma that morning, I looked for the train and could not see it; the box cars prevented it. I could not see south on account of the box cars. I just looked right in the box cars; that was all there was to look at. That was all that I could see until I got right down on the railroad track. I was looking right at the cars, and I had to come around the edge of the box cars, and they projected out two feet in the road; the box cars were within 4 or 5 feet of the main line of the Atlantic Coast Line. I knew that trains moved north and south at that point. Through passenger trains passed on that track. I drove around the edge of the box cars. When I got around the end of the box cars, my front wheel was on the track the train was on. I did not stop; I just slowed up and listened. I did not get out and go to the edge of the box cars and look. I did not stop to see if anything was coming from behind the box cars. I just slowed up, and when I did not hear anything I just pulled through; when I decided to pull through I speeded up; I did not stop to look around the edge to see if anything was coming. I did not stop anywhere after I came by the Union Fertilizer Company. I just slowed up and listened, just about as slow as a car would go and not stop, and I did not hear anything. When you stop a Ford automobile the engine still runs, unless you choke it. I slowed down just enough to keep from choking. They cannot chug away pretty heavy in that condition. My engine was running; I did not cut it off. I did not have plenty of time to cut it off behind those box cars. I listened for the train coming with the Ford engine running under my feet. You could not hear the Ford engine 30 yards away. It was running as smooth as a Cadillac. The Ford had been running a year or two, and had just been overhauled. It was not a secondhand car; I had been running it since August. I have no idea how far I had run the car. I expect I would run about 250 miles per week. I had run this car about 5,000 miles. A man ran it before, when he traveled for Swift & Company. I should think he made about the same miles as I did. I do not know how long Swift & Co. had had the Ford; some one said they had it about a year."

D. T. Oliver, witness for plaintiff, testified:

"If Mr. Kimbrough had stopped before he got to the crossing, the train would have gone on by and not hit him."

Richard Britt, witness for plaintiff, testified that plaintiff "was going 10 miles per hour. He slowed up just before he got to the crossing and speeded up and went on by."

D. T. Oliver, plaintiff's witness, further testified:

"Mr. Kimbrough was going about 10 miles an hour at the crossing. He was running about as slow as a Ford would go. He kept on running that way until the train hit him. He slowed up from what he was doing possibly. A Ford will not run any less than 10 miles an hour."

Defendant contends that this testimony on behalf of plaintiff, construed in the light most favorable to him, establishes the fact that if he had exercised ordinary care under the circumstances, he would have stopped before entering upon the track, and the accident would not have occurred.

In addition to the reasons above set forth, the Atlantic Coast Line Railroad Company, and its codefendant, contended that the motion to nonsuit should have been granted upon the ground that the record fails to show that this company was in any way connected with the control or operation of its line of railroad at the time of the accident.

Defendants contended that the court not only failed to give the jury appropriate instructions as to plaintiff's duty to stop, or take other precaution for his safety, or, in other words, to exercise due care besides looking and listening, but if the judge did so he gave another instruction in conflict with it, when he told the jury that if he looked and listened only they should answer the second issue No, and that if he had listened, and the company failed to give him proper warning of the approach of the train, it cannot be imputed to him as negligence that he went on the track. Defendants further contended that the instructions on the issue of contributory negligence are erroneous, because they withdraw the question of plaintiff's duty to do more than this, if necessary, from the jury's consideration, and directed the jury to find that plaintiff was not guilty of contributory negligence if he only looked and listened.

The trial judge gave the following instructions on the issue of contributory negligence:

"Upon this issue the burden shifts, and it is upon the defendant to satisfy you by the greater weight of the evidence of the truth of their contention, and the defendant alleges that the proximate cause of the plaintiff's injury was his own failure to exercise care and prudence for his own safety; that as he approached this railroad track at the crossing, the track being a warning of danger, it was his duty to look and listen for the approach of a train, and the defendant alleges that he failed to exercise care and to perform this duty, and that his failure was the real, or proximate, cause of the injury. Now, if this evidence satisfies you, by its greater weight, that as he approached the zone of danger he failed to look and listen, and that if he did look and listen he could either have seen the train or heard the signal, and that under these circumstances he ventured upon the track, then you should answer this fifth issue Yes, because he would be guilty of contributory negligence which would exist and extend up to the time of the injury, and would be the proximate cause of it. Unless you are so satisfied, you will answer this issue No. Where the view is obstructed, a traveler may ordinarily rely upon his sense of hearing, and if he does listen and is induced to go on the track, then the failure of the company to warn the traveler of danger cannot be imputed to his contributory negligence. Unless you are satisfied by the greater weight of the evidence, the burden being upon the defendant under this issue, that the plaintiff failed to exercise the care and prudence that the law required of him, as I have indicated to you, then you would answer this issue No, or if the evidence leaves your mind in such condition that you cannot say how it is, then you will answer it No, because the burden is upon the defendant to satisfy you affirmatively that the plaintiff was negligent, and that his negligence was the proximate cause of his injury."

Defendants contended that by the instructions of the court, which are set out above, the jury were directed to answer the issue of contributory...