Moore v. Atlantic Coast Line R. Co.

• Decision Date: 20 May 1931
• Docket Number: 98.
• Citation: Moore v. Atlantic Coast Line R. Co., 201 N.C. 26, 158 S.E. 556 (N.C. 1931)
• Parties: MOORE v. ATLANTIC COAST LINE R. CO. (two cases). ETHERIDGE v. SAME.
• Court: North Carolina Supreme Court

158 S.E. 556

201 N.C. 26

MOORE v. ATLANTIC COAST LINE R. CO. (two cases).

ETHERIDGE v. SAME.

No. 98.

Supreme Court of North Carolina

May 20, 1931

Appeal from Superior Court, Halifax County; Clayton Moore, Special Judge.

Actions by Mary Virginia Moore, administratrix of J. R. Moore, by Frank Moore, and by D. W. Etheridge, trading as the New Bakery, against the Atlantic Coast Line Railroad Company. Judgment for plaintiffs, and defendant appeals.

No error.

In action for death of occupant of automobile in collision at railroad crossing, contributory negligence held for jury.

These are actions to recover damages for the death of J. R. Moore for personal injury to Frank Moore, and for the destruction of a truck owned by D. W. Etheridge, alleged to have been caused by the negligence of the defendant.

J. R Moore, the intestate, as a salesman for D. W. Etheridge, was engaged in selling bread, cakes, and other products of a bakery, which he hauled in his employer's truck. Frank Moore, 23 years of age, was his son. On January 24, 1929 these two left South Rosemary at 10:30 a. m., intending to go to Weldon and other places. At the request of his father Frank Moore drove the truck--a Dodge truck of three-quarter ton capacity. There was a door on each side of the seat, the driver sitting at the left, his father at the right. After going to South Weldon and Garysburg, they continued their journey. They traveled on a state highway until near the place where a bridge over the railroad tracks was under construction, and then they turned to the left into a road which crossed the defendant's tracks at a distance of 415 feet from the highway. This is a main line, and has double tracks. The truck approached the track from the east, and, when the front wheels were between the rails of the east track, the engine stalled. The defendant's train, coming from the south, struck the truck, demolished it, killed the intestate, and seriously injured Frank Moore. Pleadings were filed, in which the plaintiffs alleged negligence and resultant damages, the defendants denying liability and pleading contributory negligence on the part of the occupants of the truck. In each case issues of negligence, contributory negligence, last clear chance were answered in favor of the plaintiffs and damages were assessed. Judgment accordingly, and appeal by defendant.

Thomas W. Davis, of Wilmington, F. S. Spruill, of Rocky Mount, and Dunn & Johnson, of Enfield, for appellant.

Parker & Allsbrook, of Roanoke Rapids, for appellees.

ADAMS J.

During the trial, several exceptions were entered of record, but all have been abandoned except the one relating to the defendant's motion for nonsuit. This motion was based, not upon the ground that there is no evidence of the defendant's negligence, but upon the sole contention that the evidence offered by the plaintiffs shows such contributory negligence on the part of the occupants of the truck as will bar recovery in all the cases. In maintaining this position, the defendant relies chiefly, but not exclusively, on the testimony of Frank Moore, who drove the truck at the time of the collision. Construed most favorably for the plaintiffs, their evidence tends to establish the following circumstances:

The crossing at which the collision occurred has been used by the public and kept up by the defendant for many years. On the track there were boards above which the rails projected 2 or 3 inches. The day was cloudy. The road between the highway and the crossing is a "lane with woods all the way" to a point within 9 feet of the road bed. There were two mounds between the highway and the crossing. The driver of the truck entered this "lane," stopped 60 or 70 feet from the railroad track, lowered the window, and "looked right and left up and down the track and did not hear or see anything." The mound on the left prevented him from seeing very far. It was 10 or 12 feet high. There was another mound 6 feet high. Estimates of its distance from the railroad vary from 8 to 15 feet. The driver testified that, when within 10 or 15 feet (he afterwards said 7 or 8 feet) of the track, he stopped, listened, and looked again to the right and left. His father looked also. For one-third of a mile they had a view of the track in the direction from which the train came; but they neither saw nor heard the train at that time. After looking and listening, when within 8 or 9 feet of the crossing, they drove upon it without again looking for the train. The front wheels passed over the first rail and the engine stopped running. The driver "pulled down on the starter" several times trying to put the engine in motion. Within twelve or fourteen seconds the engine struck the truck. The driver saw the train one or two seconds before the collision. He did not hear the sounding of the whistle, the ringing of the bell, or the noise of the cars.

There is abundant evidence in contradiction. Indeed, other testimony introduced by the plaintiffs is in some respects inconsistent with that of Frank Moore. In other respects it corroborates him. But on a motion for nonsuit the testimony of Frank Moore must be accepted as if established to the satisfaction of the jury. No authorities need be cited in support of this elementary proposition. Tested by this principle, are we justified in holding as a matter of law that the negligence of those who occupied the truck is a bar to the plaintiffs' recovery of damages? For the purposes of the present discussion, we may assume that Etheridge owned the truck, and that the occupants had it in charge as his agents and were acting within the scope of their employment. There is evidence that Frank Moore was subject to the control and direction of his father.

When approaching a public crossing, the employees in charge of a train and a traveler upon the highway are charged with the mutual and reciprocal duty of exercising due care to avoid inflicting or receiving injury--due care being such as a prudent person would exercise under the circumstances at the particular time and place. "Both parties are charged with the mutual duty of keeping a careful lookout for danger; and the degree of diligence to be used on either side is such as a prudent man would exercise under the circumstances of the case in endeavoring to perform his duty." Continental Improvement Co. v. Stead, 95 U.S. 161, 24 L.Ed. 403, cited in Cooper v. R. R., 140 N.C. 209, 52 S.E. 932, 3 L. R. A. (N. S.) 391, 6 Ann. Cas. 71. On reaching the crossing and before attempting to go upon it, a traveler must use his sense of sight and hearing--must look and listen for approaching trains if not prevented from doing so by the fault of the railroad company; and this he should do before entering the zone of danger. Johnson v. R. R., 163 N.C. 431, 79 S.E. 690, Ann. Cas. 1915B, 598; Holton v. R. R., 188 N.C. 277, 124 S.E. 307; Butner v. R. R., 199 N.C. 695, 155 S.E. 601. This, as we understand it, is the prevailing rule. At any rate, it is observed and has often been applied by this court.

We are referred to Baltimore & O. Railroad Co. v. Goodman, 275 U.S. 66, 48 S.Ct. 24, 25, 72 L.Ed. 167, 56 A. L. R. 645 in which it is said: ""When a man goes upon a railroad track he knows that he goes to a place where he will be killed...