Lee v. Atlantic Coast Line R. Co.
| Decision Date | 03 November 1937 |
| Docket Number | 243. |
| Citation | 193 S.E. 395,212 N.C. 340 |
| Parties | LEE v. ATLANTIC COAST LINE R. CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wayne County; W. C. Harris, Judge.
Action by J. Elton Lee against the Atlantic Coast Line Railroad Company. Judgment for the plaintiff, and defendant appeals.
Reversed.
Where highway across railroad was in darkened condition caused by shadows from trees and houses on railroad right of way rendering it difficult to see flat cars across highway, and plaintiff was unable to stop automobile, traveling from 15 to 18 miles per hour, in time to avoid collision, plaintiff was guilty of contributory negligence both in failing to drive at a speed at which he could stop within the distance to which his lights would disclose existence of obstruction on the highway in time to avoid collision, and in failing to see flat car in time to avoid the collision.
D. H Bland, of Goldsboro, W. B. R. Guion, of New Bern, and Thos W. Davis and V. E. Phelps, both of Wilmington, for appellant.
Paul B Edmundson and Ehringhaus, Royall, Gosney & Smith, all of Goldsboro, for appellee.
This was an action by the plaintiff to recover damages for personal injuries alleged to have been proximately caused by the negligence of the defendant. The defendant denied that it was negligent and also entered the alternative plea of contributory negligence in bar of recovery. The case was tried upon the usual issues of negligence, contributory negligence, and damage. The jury answered the issues in favor of the plaintiff, and from a judgment on the verdict the defendant appealed, assigning as error the refusal of the court to allow its motion for judgment as in case of nonsuit made when the plaintiff had introduced his evidence and rested his case and renewed after all the evidence was in. C.S. § 567.
Viewing the evidence in the light most favorable to the plaintiff, it tends to show that on the night of June 12, 1935, at 8 o'clock, the plaintiff was driving his '29 Model A Ford coach eastward on State Highway 402; that on the west side of the City of Goldsboro said highway crosses the Southern Railway Company's main line track, and about 60 or 70 yards further east crosses the defendant's main line track, and still further east about 12 or 15 feet crosses a side track of the defendant; that said highway is practically straight and level as it approaches and crosses said three tracks; that the plaintiff drove his said automobile across the two main line tracks, and attempted to drive it on further eastward when it collided with a flat car composing a part of a train of the defendant, which was standing across said highway or said side track; that owing to shadows cast by trees and small houses on the defendant's right of way, and the failure of the defendant to provide lights or signals of the presence of the flat car, the highway was darkened, and the plaintiff could not, and did not, see the flat car in time to stop his automobile and avoid a collision between it and the defendant's flat car.
Conceding but not deciding, that the defendant was negligent in permitting the trees and houses to remain on its right of way and in allowing its flat car to stop across the highway without lights or other signals of its presence, still we think the evidence discloses contributory negligence...
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