Miller v. Southern Ry. Co.

• Decision Date: 28 June 1933
• Docket Number: 367.
• Citation: 169 S.E. 811,205 N.C. 17
• Parties: MILLER v. SOUTHERN RY. CO. et al.
• Court: North Carolina Supreme Court

169 S.E. 811

205 N.C. 17

MILLER v. SOUTHERN RY. CO. et al.

No. 367.

Supreme Court of North Carolina

June 28, 1933

Appeal from Superior Court, Forsyth County; Stack, Judge.

Action by Bessie Miller, administratrix of Lemuel Scott, deceased against the Southern Railway Company and another. From a judgment in favor of plaintiff, named defendant appeals.

Error.

Burden of proof on issue of last clear chance is upon plaintiff.

The evidence tended to show that Lemuel Scott, plaintiff's intestate, was killed at the Muddy Creek grade crossing in Forsyth county on or about January 12, 1931, by a train of the defendant, Southern Railway Company, operated at the time by the defendant, B. C. Patton, the locomotive engineer. The physical facts and situation were described by Mr. Hill, a civil engineer, who testified for the plaintiff. He said "The highest point of this embankment, back some four or five hundred feet from the crossing toward Winston-Salem, is twelve feet above the railroad. *** There is no shrubbery along the top of that embankment between this highway and the railroad. *** The embankment of the railroad runs out level with the crossing practically at the crossing, and there is a gradually increasing embankment from there up the line towards Winston-Salem. At a distance of two hundred feet from the crossing, the embankment is about eight feet above the railroad track; at a distance of 150 feet from the crossing it is about seven feet above the railroad track; at a distance of 100 feet from the crossing, it is five feet above the railroad track; four hundred feet from the crossing it is about twelve feet above the railroad track, which is about the maximum height of the embankment. The concrete highway is an ascending grade going toward Winston-Salem, and is higher than the railroad track. The sand-clay road as it leaves the hard-surface and approaches the railroad is practically level with the railroad tracks, perhaps a little higher. *** Standing on the railroad track at the crossing, on the side nearest the concrete highway, you can see four or five hundred feet up the railroad track toward Winston. The sand-clay road after it leaves the hard-surface road is approximately fifty or sixty feet from the railroad track. I observed the train coming around that cut while I was making this survey there. I was standing in the sand-clay road about twenty feet from the crossing, toward the hard-surface road and I could see the top of the train all the way through the cut but couldn't get a full view of the train until it got within about 150 feet of the crossing. *** I would say that the average engine running over that road is about fifteen feet high; that is, to the top of the cab." Another witness for plaintiff said: "I was standing in the road approximately twenty feet from the track on the west side of the track. I could see the smokestack of the engine as it came up over the grade approximately 400 feet away from the crossing. I could not see the front end of the engine from where I was standing more than about 300 feet up the track." The evidence tended to show that the deceased was driving a T model Ford, and, while there was no eyewitness to the accident, it appears from the evidence that after the collision the car was turned over on the left side of the railroad track and the body of the deceased was on the front of the engine. Another witness for plaintiff said that "the road between the tracks at the time of the accident was in fairly good condition, kinder rough like." Another said: "The road from the main highway across the railroad was rough,...