Murray v. Atlantic Coast Line R. Co.

• Decision Date: 07 November 1940
• Docket Number: 23.
• Citation: 11 S.E.2d 326,218 N.C. 392
• Parties: MURRAY v. ATLANTIC COAST LINE R. CO. et al.
• Court: North Carolina Supreme Court

11 S.E.2d 326

218 N.C. 392

MURRAY v. ATLANTIC COAST LINE R. CO. et al.

No. 23.

Supreme Court of North Carolina

November 7, 1940

[Copyrighted Material Omitted]

Civil action to recover damages for personal injury allegedly resulting from actionable negligence.

Plaintiff was injured on morning of February 1, 1939, by an automobile operated by defendant, Mrs. Norman Elliott, while he was at work as a member of a bridge force of defendant, Atlantic Coast Line Railroad Company, composed of seven others and the foreman, J. T. Daily, engaged in repairing or reflooring the grade crossing where the Plymouth-Tarboro Branch of said defendant's railroad intersects with the State Highway from Robersonville to Bethel in the State of North Carolina.

On the trial below evidence for plaintiff discloses that his injury occurred under factual conditions and circumstances substantially these: At the point of the accident the highway crosses the railroad "on something of an angle" estimated by one witness to be forty to forty-five degrees. The highway is surfaced with concrete 16 or 18 feet wide to within inches of the ends of the cross-ties on each side of the railroad. The intervening space is so floored with boards by the defendant Railroad Company as to provide a traveling surface even with the concrete surface of the highway. The bridge force of which plaintiff was a member was engaged in the usual way in repairing the flooring at the crossing in question. The foreman and members of the force, in going to work at 7:30 o'clock on said morning, rode on a railroad motorcar to which was attached a railroad dump car on which their working tools and implements were transported. Upon arriving at the crossing the dump car was lifted from the railroad track by the plaintiff and others and placed as a barricade on the concrete portion of the highway on the right side of one traveling from Robersonville toward Bethel, at a distance stated by plaintiff to be ten steps, and by another 45 feet, from and on the Robersonville side of the railroad track so as to leave one-half or more of the paved portion of the highway on the left side open to traffic. The motorcar was lifted and similarly placed on the paved portion of the highway and on the same side thereof, but next to Bethel. The men of the force were working between these barriers and on the same side. A standard red flag was placed on the dump car and on the motorcar, respectively, on the corner nearest the center of the highway. On the dump car there were also "a lot of tools *** some drift bolts *** in a bucket saws, hammers, axe, jack and spike hammer. The jacks were standing up about three feet high; the tools were laying down, and were not piled as much as a foot high". The dump car has four wheels and is about 5 feet long, about 3 1/2 feet wide, and about 2 feet high. The floor of the motorcar is about the same height as the dump car,--and with the railing and seats it is about 3 1/2 feet high.

In approaching the crossing from Robersonville: (1) There was a "perfectly open view" and the dump car could be seen for a half mile. (2) At a point variously estimated to be from 125 to 200 feet before reaching the railroad there was a regular railroad cross-arm sign and "there was a North Carolina Stop sign about 125 or 150 feet from the track". (3) The railroad could be seen on both sides of the highway.

The witness J. H. Womble testified: "*** I passed there the morning of the collision about 9 o'clock. There were hands at work and other signs of operation going on at the place ***. There was a hand car sitting on the side of the road *** not square but at about a forty to forty-five degree angle. There was a flag laying on the flat car 2 1/2 to 3 feet from the ground. *** We did not stop. We passed by riding. There were regular crossing signs, the railroad arm above and the State has got railroad crossing signs. *** I was riding in a truck. *** Some hundred and fifty or two hundred feet before you reach the railroad is a railroad warning sign, a cross-arm standing several feet up and the boards were about 4 feet long, I judge, and I guess the letters were 6 inches high." Q. "Anybody that had any kind of eyes could see that sign? A. Yes, sir." "After you pass the cross-arm you come to another sign the Highway Commission put up. As I recall it has got 'Railroad' and represents a stop at that time, *** a regular highway sign showing that there was a railroad ahead of it. There was no vehicle ahead of me. Hanging over from the side of the dump car was a stall (staff) with a flag, standard red warning flag. I pulled slightly to my left and went around it in perfect safety ***. I saw the dump car ***".

The defendant Mrs. Norman Elliott, traveling in an automobile with her mother, sister and two children, on their way from Hertford to Rocky Mount, passed through Robersonville and up to the crossing on the side of the highway on which the dump car and motor car barricades were placed as above stated. As she approached the crossing she overtook another car traveling in the same direction and on the same side of the highway. She speeded up to pass that car and just at that moment it turned to the left to go around the barricade. It went over the crossing in safety and without colliding with the barricade or injuring any of the workmen. But she kept straight on into the dump car and crossing where plaintiffs and others were at work, striking and seriously injuring plaintiff, who was facing toward Bethel, and also injuring the foreman, who was standing by, directing plaintiff in his work.

Mrs. Elliott, testifying as witness for plaintiff, states in part: "I was driving and there was another car just ahead of me and I didn't see the barricade until he pulled out to go around it and I was right on it, in fact I was just getting ready to pass the other car as he pulled out to the left. I couldn't say exactly how far I was from where plaintiff was working but it was only a short distance; I would say it wasn't much further than from here to the front bench. Before the other car pulled over in front of me he pulled out to the left and went around it and that left the road blocked on both sides. I had nowhere to go but to hit the obstruction or the other car. *** I had just begun to pass him; I was speeding up the car to pass him as he pulled out and blocked that side and I had to keep straight ahead. He pulled out to his left and I hit the barricade. He had pulled out to go around it. The only warning of any kind that I saw was a faded-out red flag--it wasn't a brilliant new flag, and it was hanging from the end of the car down the center of the highway. *** On both sides the land was open. *** The reason I hadn't passed this other car before I saw the railroad sign and was staying back of him--I was going to pass him after I crossed the track. *** There was a North Carolina Stop sign about a hundred and twenty five or a hundred and fifty feet from the track.

"Q. Then after you passed the Stop sign there were railroad cross-arms? A. Yes, they were there--I don't recall that-- I have seen them at a number of crossings of course.

"Q. You saw them at that crossing? A. I suppose I did. I knew I was approaching a railroad and that is why I was staying behind the other car. I was driving on my right-hand side of the highway and had come up behind a car some little distance and was going to pass him as soon as I crossed the railroad. I thought he slowed down and that I would go on and pass him. I didn't start pulling to the left, I started gaining speed to pass him and about time I put on speed he pulled to his left.

"Q. He slowed down and you put on speed? A. I suppose so.

"Q. When he pulled to the left he was about as far as from you to the first bench? A. I don't know as he was. I think I was a little nearer him. *** I was coming almost to the back of his car. ***

"Q. You put on speed? A. I think so. *** I had not driven over 50 miles an hour all day ***. It couldn't have been over 50--I don't think at the time I was going that fast ***. It couldn't have been over that I am sure, probably 45. Somewhere between 45 and 50 is my estimation. When he pulled out the sign was about as far from me as to the front bench and that is the first time I had seen it.

"Q. You ran into it and hit the dump car? A. I think so *** I do not know just how close I was following the car in front of me, it was pretty close, not over the distance of the length of the car back of him. I was staying back of him with the intention of passing him. *** It was my intention to pass the other car ahead of me when they slowed down. I did not expect them to pull to the left. I realized I was approaching the railroad just a minute before he pulled out. I did not know that I was approaching a railroad until about a minute before he pulled out in front of me-- in just a flash you might say--just as I put my foot on my accelerator to pass him he turned out."

At the close of plaintiff's evidence, the court sustained motion of defendant Railroad Company for judgment as in case of nonsuit. Thereupon plaintiff submitted to judgment of voluntary nonsuit as to defendant, Mrs. Norman Elliott, and appeals to Supreme Court and assigns error.

John A. Wilkinson and H. S. Ward, all of Washington, for plaintiff-appellant.

Thomas W. Davis, of Wilmington, and Rodman & Rodman, of Washington, for defendant-appellee.

WINBORNE Justice.

When considered in the light most favorable to plaintiff, we are of opinion that as to the defendant Railroad Company the evidence is insufficient to require that an issue of negligence be submitted to the jury. Harton v. Forest City Telephone Co., 146 N.C. 429; 430, 59 S.E. 1022, 14 L.R.A.,N.S., 956, 14 Ann.Cas. 390; ...