Odom v. Atl. Coast Line R. Co

• Decision Date: 30 March 1927
• Docket Number: (No. 283.)
• Citation: Odom v. Atl. Coast Line R. Co, 193 N.C. 442, 137 S.E. 313 (N.C. 1927)
• Court: North Carolina Supreme Court
• Parties: ODOM. v. ATLANTIC COAST LINE R. CO.

(193 N.C. 442)

137 S.E. 313

ODOM.

v.ATLANTIC COAST LINE R. CO.

(No. 283.)

Supreme Court of North Carolina.

March 30, 1927.

Appeal from Superior Court, Cumberland County; Midyette, Judge.

Action by Tom Odom, administrator of Ernest Skeen, deceased, against the Atlantic Coast Line Railroad Company. Judgment dismissing the action, and plaintiff appeals. Reversed and remanded.

Civil action to recover damages for the death of plaintiff's intestate, alleged to have been caused by the wrongful act, neglect, or default of the defendant.

There is evidence on behalf of the plaintiff tending to show that the witness Preston Cope, and the deceased, Ernest Skeen, were both employees of the Alabama Concrete Products Company, which company had a contract to place one of the concrete state highways near the city of Payetteville.. Cope was a truck driver, and the deceased worked at the concrete mixing machine. It was the custom of the deceased to catch a ride out on the road to the mixing plant on some of the trucks operated by the drivers of the concrete company. On the morning of August 21, 1924, Cope was driving an empty truck along Chance street, in the city of Payetteville going westwardly, and had to cross four tracks of the Atlantic Coast Line Railroad Company to reach the plant of the concrete company on the west side of the railroad track, located on Orange street. When Cope stopped the truck at the "N. C. Stop" sign, the deceased jumped on the running board of the Ford truck on the left-hand side of the truck, and then the two started to cross the railroad tracks. Cope drove slowly toward the crossing, and after arriving within about 2 1/2 feet of the track upon which it later appeared the train was passing, he heard some one holler, "Look out!" two or three times. Looking, he first saw nothing, but looking again to the left and on the side of the truck where Skeen was riding, he saw a freight train coming at a speed of 12 to 15 miles per hour, backing toward the crossing. The truck was still at a standstill about 2 1/2 feet from the track, when the brakeman, or man on the train, "waved" to them and told them to proceed across the track, and before the truck had yet moved, the brakeman repeated bis direction to go across three or four times. Cope, the driver, finally, in obedience to this direction, proceeded across, when, just as the train was about to collide with the truck, and on the side where Skeen was riding, Skeen jumped from the truck, and was caught by the train and instantly killed. The truck cleared the track and was not struck. No whistle was sounded. No bell was rung on the train. The witness Gregory, an ex railroad man, testified that the train could have been stopped after the truck started across before it reached the point where the truck was crossing.

On...