Oldham v. Seaboard Air Line Ry. Co.
| Decision Date | 04 November 1936 |
| Docket Number | 244. |
| Citation | 188 S.E. 106,210 N.C. 642 |
| Parties | OLDHAM v. SEABOARD AIR LINE RY. CO. et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Lee County; Clawson L. Williams, Judge.
Action by E. V. Oldham against the Seaboard Air Line Railway Company and others, for negligence. From a judgment for plaintiff defendants appeal.
No error.
Where motorist drove on railway crossing after looking both directions, hearing no warning and seeing nothing but freight cars to north apparently motionless, and watchman then ran out on crossing looking south and caused motorist to stop on tracks and automobile was struck by freight train from north question of contributory negligence held for jury.
Civil action to recover damages for alleged negligent injury to plaintiff and his automobile.
The facts are these: Plaintiff was injured May 5, 1934, at a grade crossing in Sanford, N. C., when his automobile collided with a shifting freight train operated by the defendants. Plaintiff was familiar with the crossing. He looked in both directions before entering upon the tracks. He saw some freight cars on his right (north) apparently standing still, but saw no engine and heard no bell or whistle; saw no train on his left (south). Plaintiff knew a watchman was due to be stationed at the crossing. Just as his front wheels reached the first rail, the watchman came running out, looking south, threw up his "Stop" sign, and caused plaintiff to choke down his car. While in this position, defendant's freight train, coming from the north, backed over the crossing, struck plaintiff's car carried it 70 or 80 feet before stopping, demolished the car and injured plaintiff.
On cross-examination, plaintiff testified:
The usual issues of negligence, contributory negligence, and damages were submitted to the jury and answered in favor of the plaintiff.
Judgment on the verdict, from which the defendants appeal, assigning as error the refusal of the court to nonsuit on plaintiff's own testimony.
J. C. Pittman, of Sanford, and Varser, McIntyre & Henry, of Lumberton, for appellants.
Gavin & Jackson and K. R. Hoyle, both of Sanford, for appellee.
Does the plaintiff's alleged contributory negligence bar a recovery as a matter of law? The answer is, "No." Lincoln v. R. R., 207 N.C. 787, 178 S.E. 601. The issue was for the twelve.
Defendants have apparently misinterpreted plaintiff's testimony. He does not say he knew the train was approaching before going upon the crossing. His statement, "I thought the train was coming from the south," has reference to what he thought after his car had choked down or stopped, due to the direction in which the watchman was looking when he ran out with his stop sign.
The pertinent principle was stated by Hoke, J., in Shepard v R. R., 166 N.C. 539, 82 S.E. 872, quoting with approval from 33 Cyc. 1028, as follows: ...
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