McCrimmon v. Powell
| Decision Date | 29 April 1942 |
| Docket Number | 456. |
| Citation | 19 S.E.2d 880,221 N.C. 216 |
| Parties | McCRIMMON v. POWELL et al. |
| Court | North Carolina Supreme Court |
Civil action to recover damages for personal injuries sustained as a result of an automobile-train collision.
The main line tracks of the defendants extend in a north-south direction from Raleigh through Franklinton, N. C., to Henderson. Mason Street in Franklinton extends in an east-west direction and crosses defendants' tracks at grade. At this crossing there are four tracks. Going west the first is an unloading track; the second is a pass track; the third is the main line and the fourth is a side track. In the southwest corner there is a two-story brick building on the edge of Mason Street and within 7 1/2 feet of the unloading track.
At about 1:30 A. M. on the morning of December 26, 1939 plaintiff, accompanied by one Sylvester Rattley and Johnnie Henderson, returned from an automobile trip to Henderson. He attempted to cross defendants' tracks at two other street crossings but found them blocked by a freight train. He then proceeded to Mason Street, turned to his left going east and attempted to cross. He stopped, looked and listened before reaching the unloading track. At that time the windows of his automobile were closed. He could not see to his right because his vision was blocked by the two-story building. He then proceeded to the unloading track. He saw the engine of the freight train standing on the second or pass track to his left and, looking to the right, he saw a train of the defendant approaching from the south. The testimony considered in the light most favorable to him, tends to show that he did not and could not see the approaching train until his car was up on the unloading track. Seeing the train approaching he accelerated his speed and attempted to cross ahead of the train. The rear end of his car was struck by the train just before it cleared the main line track. As a result he suffered certain personal injuries. One of the passengers was killed and the other one sustained injuries.
There is evidence tending to show that the train was traveling about 60 miles per hour and that it gave no signal or warning of its approach. Plaintiff's evidence likewise tends to show that after his car was up on the unloading track he could see to the right as far as his vision would permit.
The distance from the center of the unloading track to the center of the main line track is more than 30 feet.
At the conclusion of all the evidence, on motion of the defendants, the court below entered judgment of involuntary nonsuit. Plaintiff excepted and appealed.
Lumpkin Lumpkin & Jolly, of Louisburg, for plaintiff-appellant.
Murray Allen, of Raleigh, for defendants-appellees.
The sole question presented on this appeal relates to the correctness of the ruling of the court below upon defendants' motion to dismiss as of nonsuit at the conclusion of all the evidence.
As to the immediate circumstances of the collision the plaintiff testified ...
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Bundy v. Powell
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