Meacham v. Southern Ry. Co

• Decision Date: 25 May 1938
• Docket Number: No. 523.,523.
• Citation: 213 N.C. 609,197 S.E. 189
• Court: North Carolina Supreme Court
• Parties: MEACHAM . v. SOUTHERN RY. CO. et al.

213 N.C. 609

197 S.E. 189

MEACHAM .

v.SOUTHERN RY. CO. et al.

No. 523.

Supreme Court of North Carolina.

May 25, 1938.

Appeal from Superior Court, Mecklenburg County; T. B. Finley, Emergency Judge.

Action by E. Y. Meacham against the Southern Railway Company and another for injuries sustained in a collision between a truck driven by plaintiff and the tender of a railroad engine. From a judgment for plantiff, defendants appeal.

New trial.

Civil action to recover damages for personal injuries alleged to have been caused by the wrongful act, neglect or default of the defendants.

Plaintiff was injured about 9 o'clock on the morning of November 7, 1935, at a railroad crossing in Salisbury, N. C, when the truck he was driving was struck by the tender of an engine operated by the corporate defendant, with Joe Lee the engineer in charge.

Plaintiff testified that he was employed as a truck driver for the Air Reduction Sales Company of Charlotte and was engaged in delivering oxygen and acetylene cylinders on the morning in question; that E. R. Waller, his helper, was sitting on his right in the cab seat; that it had been raining, but had stopped or was misting and there was a heavy fog; that he could see "through this mist that morning" 75 or 100 feet; that he was thoroughly familiar with the crossing and its four regular tracks, plus a switch track, making five in all; that he knew a regular train or shifting engine might be coming across the trades at any time as the crossing was

[213 N.C. 190]

near the shifting yards of the corporate defendant; that he stopped about 10 feet from the switch track, looked and listened, and heard nothing; that he next stopped about 10 feet of the first track, looked and listened, and did not hear or see anything; that he then started up again, traveled a distance of 40 or 50 feet in low gear at a speed of 3 or 4 miles an hour, and was struck by the tender of a shifting engine on the fourth track. "As to whether I looked south (to plaintiff's right and in the direction of the engine), I glanced that way. * * * I glanced south after I started up. I don't know exactly where I was when I glanced south, but it was something like between the first and second tracks. After that I didn't look south any more, looked to my left. I never did see the engine with which I collided. I didn't see the train at all."

Plaintiff's helper testified that he kept a close lookout down the tracks in the direction of Salisbury or towards the south; that he first saw the tender of the engine when the front wheels of the truck were about the fourth track; that he couldn't tell whether the engine was moving or standing still on account of the fog; that it was within 50 or 65 feet before he was able to determine that it was moving-- backing up; that no bell or whistle signal or warning of any kind was given of its approach; that its speed was from 40 to 50 miles an hour; that he called out to the plaintiff to "look out" just before it hit the truck.

The evidence on behalf of the defendants tends to show quite a different state of facts. The engineer testified that he saw the truck and thought it would stop; that he gave the usual signals, and applied the emergency brakes when he discovered the truck was on the fourth track; that the rain had ceased falling and while there was some slight mist, there was no fog; that he was running around 15 or 20 miles an hour and "I think the truck was making about the same speed, around 12 to 15 miles an hour. * * * The truck did not stop--didn't make any halt whatever."

The motions for nonsuit were overruled, and in apt time the defendants requested the court to instruct the jury that "unless you find the plaintiff's vision was obstructed by a fog, you should answer the second issue (contributory negligence), Yes." Refused; exception.

The usual issues of negligence, contributory negligence and damages were submitted to the jury and answered in favor of the plaintiff.

From judgment on the verdict, the defendants appeal, assigning errors.

W. T. Joyner, of Raleigh, and John M. Robinson, of Charlotte, for appellants.

D. E. Henderson, of Charlotte, and H. L. McCormick and Charles S. Rhyne, both of Washington, D. C, for appellee.

STACY. Chief Justice.

The one circumstance which saves the case from nonsuit, Godwin v. R. Co, 202 N.C. 1, 161 S.E. 541, Eller v. R. Co., 200 N.C. 527, 157 S.E. 800, and carries it to the jury, Dancy v. R. Co, 204 N.C. 303, 168 S.E. 200, Butner v. R. Co, 199 N.C. 695, 155 S.E. 601, is the presence of evidence tending to show low visibility from fog or mist. Parker v. Ry, 181 N.C. 95, 106 S.E. 755; Johnson v. R. Co, 163 N.C. 431, 79 S.E. 690, Ann.Cas.l915B, 598; Morrow v. R. Co, 146 N.C. 14, 59 S.E. 158. Compare Loflin v. R. Co, 210 N.C. 404, 186 S.E. 493; Weston v. R. Co, 194 N.C. 210, 139 S.E. 237; Lee v. R. Co, 180 N.C. 413, 105 S.E. 15. Opaqueness of the atmosphere, if established, increased the need of timely warning which the plaintiff had a right to expect, Quinn v. R. Co, 213 N.C. 48, 195 S.E. 85, and heightened the need of attention on his part. Lee v. R. Co., supra. Due care, i. e, commensurate care under the circumstances, was required of both. Small v. Utilities Co, 200 N.C. 719, 158 S.E. 385. The accepted standard under varying conditions is the conduct of the reasonably prudent man. Cole v. R. Co, 211 N.C. 591, 191 S.E. 353. "The' standard is always the conduct of the reasonably prudent man, or the care which a reasonably prudent man would have used under the circumstances. Tudor v. Bowen, 152 N.C. 441, 67 S.E. 1015, 30 L.R.A., N.S, 804, 136 Am.St.Rep. 836, 21 Ann.Cas. 646. The rule is constant, while the degree of care which a reasonably prudent man exercises, varies with the exigencies of the...