Mattingly v. North Carolina R. Co., 233

• Decision Date: 20 January 1961
• Docket Number: No. 233,233
• Citation: 253 N.C. 746,117 S.E.2d 844
• Court: North Carolina Supreme Court
• Parties: Harvey W. MATTINGLY v. NORTH CAROLINA RAILROAD COMPANY and Southern Railway Company.

Page 844

117 S.E.2d 844

253 N.C. 746

Harvey W. MATTINGLY v. NORTH CAROLINA RAILROAD COMPANY and Southern Railway Company.

No. 233

Supreme Court of North Carolina.

Jan. 20, 1961

Sedberry, Sanders & Walker, Charlotte, for plaintiff-appellee.

W. T. Joyner, Raleigh, and Robinson, Jones & Hewson, Charlotte, for defendants-appellants.

WINBORNE, Chief Justice.

Defendants stress for error the overruling of their motion for judgment as of nonsuit at the close of the plaintiff's evidence. In such case the evidence is to be viewed in the light most favorable to the plaintiff, giving to him the benefit of every reasonable inference to be drawn therefrom, and assuming to be true all the facts in evidence tending to support his cause of action. Ervin v. Cannon Mills Co., 233 N.C. 415, 64 S.E.2d 431; Clontz v. Krimminger, 253 N.C. 252, 116 S.E.2d 804.

In order to establish a case of actionable negligence in a suit like the present, the plaintiff must show: First, that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff, under the circumstances in which they were placed; and, second, that such negligent breach of duty was the proximate cause of the injury--a cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed. Ramsbottom v. Atlantic Coast Line R. R. Co., 138 N.C. 38, 41, 50 S.E. 448.

It is also a general rule of law in North Carolina 'that the operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. And in the exercise of such duty it is incumbent upon the operator of a motor vehicle to keep same under control, and to keep a reasonably careful lookout * * *. ' Smith v. Rawlins, 253 N.C. 67, 116 S.E.2d 184, 185; Clontz v. Krimminger, 253 N.C. 252, 116 S.E.2d 804.

It would seem, therefore, that when the evidence of the plaintiff is tested by the rules laid down by this Court that the defendants' motion for nonsuit should have been granted. The plaintiff's own evidence shows that the railroad cross-over was smooth and straight, and not in disrepair. Indeed, plaintiff failed to introduce any evidence tending to show negligence on the part of the defendant railroads in maintaining the crossing. The clue as to the cause of plaintiff's running off the road is stated by him. He testified that he was unfamiliar with the crossing and 'misjudged the turn to the right' and as a result his car ended up 'lodged in the soft gravel' off the asphalt crossing.

When the evidence, as narrated above, is considered it compels the conclusion that the plaintiff failed to keep a proper lookout and contributed to his own injury. 'It is the duty of the driver of a motor vehicle not merely to look, but to keep an outlook in the direction of travel, and he is held to the duty of seeing what he ought to have seen. ' Wall v. Bain, 222 N.C. 375, 23 S.E.2d 330, 333.

However, it is the plaintiff's contention, that notwithstanding any contributory negligence on his part, the fact that his car was stalled near the railroad tracks was apparent, or in the exercise of due care should have been apparent, to the engineer of the defendants' train in time to have stopped the train and avoided the collision--in other words, that the defendants had the last clear chance to avoid injury...