Moseley v. Atlantic Coast Line R. Co.

• Decision Date: 30 October 1929
• Docket Number: 216.
• Citation: 150 S.E. 184,197 N.C. 628
• Parties: MOSELEY v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

150 S.E. 184

197 N.C. 628

MOSELEY v. ATLANTIC COAST LINE R. CO.

No. 216.

Supreme Court of North Carolina

October 30, 1929

Appeal from Superior Court, Lenoir County; Nunn, Judge.

Action by Zeb. V. Moseley, administrator of the estate of Leslie Davis, against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. No error.

Instruction that, where crossing was peculiarly dangerous, absence of statute requiring presence of flagman did not relieve railroad of duty to maintain flagman, held proper.

This is an action for actionable negligence, brought by plaintiff administrator of Leslie Davis, against the defendant, for killing his intestate at a street crossing. The defendant denied negligence, and pleaded contributory negligence.

Leslie Davis, a young white man about 30 years old, drove a truck selling bottled soft drinks in crates, for one W. F. Tyndall who lived in Kinston, who was in the bottling business. Davis drove a Chevrolet truck, weighing about 2,500 to 3,000 pounds, which usually carried a load of 3,000 to 4,000 pounds. The truck had a cab the width of about 3 1/2 to 4 feet. The distance from the front of the truck to the back of the driver's seat was 7 1/2 feet. The front of the truck was 6 1/2 feet from the driver. On the morning of April 6 1927, he left the city of Kinston with a negro boy, Joe Smith. Davis was driving the truck; they went to Goldsboro, Pine Level, Selma, and then to Smithfield. They drove across the railroad tracks on Johnson street and stopped at Jim Obey's store, on the south side of Johnson street and on the east side of defendant's railroad. The store was on the south side of the street. Joe Smith usually handled the crates. After making a delivery at Obey's store, they got in the cab, Davis at the wheel and Smith beside him. The cab was the usual one of such trucks, closed with doors on both sides, six windows counting the front one; nothing to obstruct the view of one riding in the cab.

The railroad ran north and south and Johnson street east and west. There were four tracks of the defendant railroad that crossed Johnson street, and a spur track branching out from the first east track leading to the ice plant on the north side of Johnson street. The tracks of defendant are within the corporate limits of Smithfield. From the east side of the north-bound main line track, the second east track, which passenger train No. 80 was on, which killed Davis, to the side of Obey's store, is 67 feet. There was a roadway, alley, or lane about 20 feet wide to the west of Obey's store, going south, and back of and to the east of two railroad houses which faced the railroad, the two houses fronting on track 1. A tool house 14.4 feet by 16.4 feet and 11.2 feet high, a few feet from Johnson street, and a supply house a few feet south of the tool house, which is 30.4 feet by 12 3/4 feet and 15.7 feet high. Before reaching Johnson street, south of these two houses, the tracks of defendant company curve practically all the way down about a quarter of a mile south of Johnson street. The tool house is 10 feet from the eastern rail of the first track. From the tool house to the north-bound main line track, the eastern edge of same is about 26 or 27 feet. From the supply house to the east rail of the north-bound main line track is about 24 or 25 feet. From the center of the side track to the center of the main line track is 15 feet. The distance from the east rail of the northbound track to the east rail of the pass track, that you reach before getting to the northbound track, is 15 feet. Between the rails it is about 4.9 feet. A person driving from east to west on Johnson street, when he reached a point on Johnson street 25 feet from the east rail of the main line, the track the train was on which killed Davis, looking south, his view would hit the tool and supply houses. After he cleared the houses at a point 23 feet from the east rail of the main line, his view would hit the curve some 147 yards down the track; 12 feet from the east edge of the rail of the north-bound track he could see down the track 800 feet. Driving in a car, the front end "would be on the side track (first track) adjoining the main line (second track) before he could see any distance towards the south down that main line track" in the direction the train No. 80 was coming which killed Davis. "After clearing those buildings going towards the main line, I would say you could see 250 feet" (about 84 yards).

Numerous witnesses testified that they heard no whistle of the train or bell rung for Johnson street crossing; no signal until the emergency whistle blew three short blows right close together, about 50 feet of the crossing where Davis was killed. When the engineer applied the brakes, from the looks of the rail there were blue places--two on each rail opposite each other, like something had rubbed it and turned it blue. "I knew what they were; they looked like friction marks from the application of brakes." They were 30 1/2 feet from the center of the plank crossing. No. 80 was a little late, running 35 to 40 miles an hour. There was continuous traffic across Johnson street, used by automobiles, trucks, bicycles, and all kinds of conveyances and as a walkway. At the time there was a negro school in session; about 500 children attend the school, and about 75 per cent. have to cross Johnson street to go to the school; near the crossing there are two stores on the south side, and an icehouse on the north side. "There are probably 75 houses, stores, churches, and schoolhouses on the east side of the railroad, where Johnson street runs; that is the way they get across there, unless they go through and strike the old No. 10 about a quarter of a mile. Johnson street is our only way in and out; it is used largely." At the crossing "there are no gates kept there by the railroad company, no bells, gongs, or devices of any kind to warn of the approach of trains, and no watchman there." Near the ice plant, across the street from Obey's store, is a "N. C. Law Stop" sign, facing the east approach of the crossing.

When Davis and the negro boy got in the cab of the truck, the truck was facing east and within the zone between the railroad and the stop sign. The Chevrolet truck was in good condition, practically new, perfect mechanical condition. The motor was in fine condition. Davis was a good driver.

From the center of the intersection of Johnson street with the main line of the defendant company's railroad to the center of the depot, which is north, is 223 feet. From the center of Johnson street crossing to where the truck was found after the wreck and carried by the train was 300 feet. The body of Davis was carried by the train 140 feet from the intersection of Johnson street. The body of Davis was found between the two east tracks. The train that killed Davis was on track 2, and the truck was thrown off on the same side as the body, both thrown on the east side of the main line track 2 that the train was on. Johnson street crossing over the tracks was built of dirt and rock and timber, 10-inch plank, on both sides of the rails on the second track, to make the approach even with the rails. The approach was on a slight incline. "On the pass tracks the rails are level with the street. The rails of the main line tracks are larger than the rails on the pass tracks, stand up higher on the track, and are heavier." The train consisted of "four express cars, a mail storage, mail postage, baggage car, colored coach, white coach, and New York Pullman, and in addition to that the engine and tender." The average car is about 60 feet and the engine about 100 feet, total length of train 700 feet.

The train approaching Johnson street, the rear end of the last coach, was 5.8 feet lower than the front of the engine. "The truck backed back from in front of Obey's store on the side just off to one side of the street and that made it face the railroad, and it curved out and started on across the railroad track. Approaching the railroad track from the east, going along Johnson street towards Smithfield, you do not have any view down the track to begin with, on account of the obstruction of these two houses until you get beyond those houses going toward the railroad. You would have to get down beyond, in other words, by these two houses on the right of way; that would put you about to the first side track. Johnson street, in front of Obey's store, is about 20 to 25 feet. As to the construction of the crossing, the only thing I know is there is a board on each side of the T-iron, and then there is dirt, and it is a narrow crossing about 10 feet wide." It was in evidence that trains were frequently crossing Johnson street day and night.

Joe Smith, the negro boy, described what happened, thus "After we delivered the drinks to Obey's store, this day, we got in the truck and backed right short around Obey's store corner, there is a little lane down there, we backed the truck from in front of this first store, then we started on across the railroad; at that time I was in the truck, in the cab with Mr. Davis. I was looking to the right and he was looking to the left; the right is towards the depot. I did not hear any train blow until it was right on us. The first knowledge I had that there was a train coming I looked toward the station to the right, and the people were all looking that way looked like they were mad or something, and I looked down to the south and saw the train coming; at that time it was a little over 100 yards from us and at that time the truck was between the first and second tracks and the front wheel was on the track on which the train was coming. When the train got there right on us, it got almost on the running board...