Kinlaw v. Norfolk Southern Ry. Co., 613

• Decision Date: 20 January 1967
• Docket Number: No. 613,613
• Citation: 269 N.C. 110,152 S.E.2d 329
• Court: North Carolina Supreme Court
• Parties: Annie P. KINLAW, Administratrix of the Estate of Herman Floyd Kinlaw and the United States Fidelity and Guaranty Company v. NORFOLK SOUTHERN RAILWAY COMPANY.

Page 329

152 S.E.2d 329

269 N.C. 110

Annie P. KINLAW, Administratrix of the Estate of Herman

Floyd Kinlaw and the United States Fidelity and Guaranty Company v. NORFOLK SOUTHERN RAILWAY COMPANY.

No. 613.

Supreme Court of North Carolina.

Jan. 20, 1967.

Neill Mck. Ross, Lillington, and D. K. Stewart, Dunn, for plaintiff appellants.

R. N. Simms, Jr., Raleigh, for defendant appellee.

LAKE, Justice.

The allegation in the complaint that the plaintiff is the duly qualified and acting administratrix of the deceased is denied in the answer and the record does not disclose any evidence that she was so appointed. Nothing else appearing, the judgment of nonsuit would have been proper on this ground. Graves v. Welborn, 260 N.C. 688, 133 S.E.2d 761, 3 A.L.R.3d 1225; Carr v. Lee, 249 N.C. 712, 107 S.E.2d 544. However, the agreed statement of the case on appeal states, 'This is a civil action instituted by Annie P. Kinlaw, Administratrix of the Estate of Herman Floyd Kinlaw, deceased.' We infer from this that the defendant concedes her due appointment and qualification. See Abernethy v. Burns, 210 N.C. 636, 188 S.E. 97. Consequently, the judgment of nonsuit cannot be sustained upon the ground that the plaintiff is not the party entitled to maintain this action.

To determine whether the plaintiff's evidence shows negligence by the defendant which was the proximate cause of the collision and death, the evidence of the plaintiff must be taken as true, and every reasonable inference favorable to her must be drawn therefrom. Cox v. Gallamore, 267 N.C. 537, 148 S.E.2d 616; Lewis v. Barnhill, 267 N.C. 457, 148 S.E.2d 536; Sink v. Moore, 267 N.C. 344, 148 S.E.2d 265.

So considered, the plaintiff's evidence is sufficient to permit, though not to compel, the inference that the automatic signal lights at the crossing were not flashing, or illuminated, prior to the collision. Her evidence is also sufficient to permit, though not to compel, the inference that the defendant did not blow any whistle, ring any bell, or otherwise give any warning of the approach of the locomotive to the crossing. '(T)estimony that a person nearby who could have heard and did not hear the sounding of a whistle or the ringing of a bell is some evidence that no such signal was given.' Johnson & Sons, Inc. v. Southern R.R., 214 N.C. 484, 199 S.E. 704; and see Cox v. Gallamore, supra.

The testimony of the witness Bass is that he heard no whistle or bell as he approached the crossing, went over it and proceeded beyond it. He also testified that he was approximately 150 feet in front of the machine driven by the deceased, which, at the speed at which they were driving, according to his testimony, placed him about seven seconds ahead of the deceased in reaching the crossing. The witness testified that these machines made about the same noise as a diesel powered truck. It could be found by a jury that such a vehicle, proceeding slowly downgrade, would not make sufficient noise to prevent the driver from hearing the whistle or bell of an approaching train. The evidence does not indicate any other vehicle or equipment nearer to the crossing than 400 feet.

Though the complaint alleges that 'Immediately to the east of said crossing heavy earth moving equipment was in operation creating unusual and abnormal amounts of noise which tended to over-shadow any noise being made by said locomotive,' the answer categorically denies this allegation and alleges, 'there was nothing to prevent plaintiff's intestate from * * * hearing the whistle of the train.' What would otherwise be a damaging admission in the complaint has thus been obliterated by the answer.

Taking the evidence, together with these allegations in the pleadings, in the light most favorable to the plaintiff, it is sufficient, if believed, to permit a jury to find that the defendant operated its locomotive to and upon this crossing without giving any signal whatever of its approach thereto. There is also ample evidence to support a finding that this was a crossing at which an embankment obstructed the view of a northbound traveler upon the highway, a fact of which the railroad necessarily had notice. The railroad was, therefore, under a duty to give to such traveler notice of the approach of its locomotive to such crossing. If it failed to do so, it was negligent. Cox v. Gallamore, supra, and cases there cited.

This Court has held that the proof of a failure of automatic signals to function at a given moment is not sufficient of itself to show negligence by a railroad. Johnson v. Southern R.R., 255 N.C. 386, 121 S.E.2d 580, 90 A.L.R.2d 344. This is especially true here in view of the allegation in the complaint, admitted in the answer, that Brown Paving Company interfered with the operation of the signals. However, the operation of a locomotive to and upon a blind crossing of a main highway with no notice whatever of its approach is a lack of due care for the safety of users of the highway. The plaintiff's evidence, when considered in the light most favorable to her, is sufficient to support such a finding.

A judgment of nonsuit may not be sustained on the ground of contributory negligence by the deceased unless the plaintiff's own evidence, interpreted in the light most favorable to the plaintiff, shows that negligence by the deceased was one of the proximate causes of his injury and death so clearly that no other conclusion can reasonably be drawn therefrom. Pruett v. Inman, 252 N.C. 520, 114 S.E.2d 360; Bondurant v. Mastin, 252 N.C. 190, 113 S.E.2d 292. We do not have in this record the defendant's version of how the collision occurred and, if we did, it could not be considered upon a motion for judgment of nonsuit except insofar as it might be favorable to the plaintiff.

There is no evidence in this record to show the manner in which the deceased approached the crossing, except that when approximately 150 feet therefrom he was driving at a speed not in excess of 15 miles per hour. He was proceeding on a substantial downgrade with a heavy machine. There is no evidence that he saw, or should have seen, the approaching locomotive in time to stop his machine before it reached the crossing. As above stated, there is no evidence in this record to show that the defendant gave any signal by any means whatever of the approach of the locomotive before it came into the view of the deceased. There is no evidence in this record that the automatic signal lights erected at the crossing were flashing. All the...