Pickett v. Carolina & N.W. Ry.

• Decision Date: 06 May 1931
• Docket Number: 514.
• Citation: 158 S.E. 398,200 N.C. 750
• Parties: PICKETT v. CAROLINA & N.W. RY. et al.
• Court: North Carolina Supreme Court

158 S.E. 398

200 N.C. 750

PICKETT v. CAROLINA & N.W. RY. et al.

No. 514.

Supreme Court of North Carolina

May 6, 1931

Appeal from Superior Court, Catawba County; Shaw, Judge.

Action by Mrs. Opal Pickett, administratrix of the estate of W. L G. Pickett, deceased, against the Carolina & Northwestern Railway, the Town of Newton, and another. Judgment of nonsuit as to the railway company, and judgment for plaintiff against defendant town, from which judgment the town appeals.

No error.

Incorporated town, having express notice of defective and dangerous condition of street, would be liable for injuries received by travelers, proximately caused by defects.

The evidence tended to show that the Carolina & Northwestern Railway crosses a public street in the town of Newton; that an overhead bridge had been erected over the tracks of the railway company; and that said bridge was within the corporate limits of said town. Some time prior to December 26, the state highway commission, under and by virtue of chapter 2, Public Laws of 1921, Code 1927, § 3846 (a) et seq., had taken over for the purpose of paving and constructing said street as a part of the state highway system. The street had been improved to within several feet of the bridge. The distance between the termination of the concrete road and the bridge was variously estimated from fifteen to forty feet. Therefore, traveling the concrete road approaching the bridge when within fifteen to forty feet of the bridge, there was a drop or declivity of about five feet that is to say, the concrete street was four or five feet higher than the dirt space between the end of the concrete street and the bridge. This drop or declivity, according to the evidence, sloped gradually from the end of the concrete street. The bridge was situated at an angle. Some of the witnesses testified that the angle was about twenty-five degrees. In other words, a traveler moving along the concrete street, when he arrived at the termination of the concrete would be compelled to make a sharp turn to get on the bridge and the testimony tended to show that, if the street were projected in a straight line, it would not hit the bridge at all. The highway commission had placed various signs upon the street approaching the bridge. These sign boards were labeled "Danger," "Weak bridge," "One way bridge." Another sign read, "Dangerous bridge," "Railroad bridge, very dangerous," ""Traffic may proceed at owner's risk." Lanterns were attached to the signs at the bridge to give further warning of danger. This condition had existed for a period of about four months prior to the time of plaintiff's death.

On December 26, 1928, at about 6:45 p. m., W. L. G. Pickett, who lived at Rich Square, N. C., was traveling through the town of Newton in a Chevrolet truck loaded with opera chairs, which he was transporting from Hickory, N. C., to Rich Square, N.C. The evidence tended to show that the lights or lanterns upon the bridge were not lighted on this particular night, and that said Pickett in attempting to cross said bridge struck the corner of the bridge causing him to lose control of his truck, which ran a few feet upon the bridge, turned over and caught fire, resulting in his death. There was other evidence tending to show that the runners or planks running across the bridge were cupped up and in a defective condition.

Plaintiff alleged and offered evidence tending to show that the sharp curve, the sudden drop or declivity on the hard-surface street, the absence of lights, and other defective approaches to the bridge, together with the fact that the bridge was placed at an angle to the street, produced a dangerous situation upon the street at the bridge. The town of Newton filed an answer alleging that the state highway commission was in the control of said street and said bridge, and that the same was then under construction, and that, therefore, the town of Newton was charged with no responsibility for the maintenance and repair of said street and bridge.

At the conclusion of plaintiff's evidence the defendant railway company moved for judgment of nonsuit and the motion was allowed by the court.

The town of Newton offered in evidence the complaint and decree in the case of Town of Newton v. State Highway Commission. The decree provided that the highway commission would take over and construct route No. 10 through the town of Newton.

The following issues were submitted to the jury:

1. "Was the death of plaintiff's intestate caused by reason of the negligence of the defendant, Town of Newton, as alleged in the complaint?"

2. "If so, did plaintiff's intestate, by his own negligence, contribute to his death, as alleged in the answer?"

3. "What damages, if any, is the plaintiff entitled to recover?"

It does not appear how the issues were answered, but judgment was entered in favor of plaintiff and against the defendant town of Newton, for the sum of $7,000, from which judgment the defendant town appealed.

Wilson Warlick, of Newton, and W. B. Councill and W. A. Self, both of Hickory, for...