Pitt v. Atlantic Coast Line R. Co.

• Decision Date: 05 October 1932
• Docket Number: 51.
• Parties: PITT v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

166 S.E. 67

203 N.C. 279

PITT v. ATLANTIC COAST LINE R. CO.

No. 51.

Supreme Court of North Carolina

October 5, 1932

Appeal from Superior Court, Nash County; Cranmer, Judge.

Action by Hattie M. Pitt, administratrix of Tom Pitt, deceased against the Atlantic Coast Line Railroad Company. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

Evidence of railroad's liability, where traveler in buggy approached parallel tracks in daytime, saw flagman at crossing, watched freight to right, and was struck by passenger train from left, held insufficient for jury.

This was a civil action to recover damages for wrongful death. The evidence tended to show that the defendant operates a line of railroad running through the town of Elm City. The public highway crosses the tracks at grade. There are two main tracks at the crossing, the east track being the northbound and the west track being the southbound. The evidence further disclosed that the defendant maintained a watchman at said crossing.

On or about December 6, 1930, at about 4 o'clock in the afternoon, the plaintiff's intestate, riding in a buggy and driving a mule, undertook to cross the tracks. At the time, a freight train of defendant was approaching the crossing from the south going north. One eyewitness to the killing testified as follows: "I saw the train when it struck his mule and buggy. He came around the corner of the depot and drove up by the side track, and just as he drove up on the side track the watchman came out with his sign and walked into the middle of the sidewalk, and just as the flagman held up his sign Thomas Pitt's mule had entered into the main track. I did not hear any whistle or other signal from the train until it had struck Thomas Pitt and had stopped. Then the bell rung and the whistle blew. The tower where the watchman stays is about seven or eight yards off from the railroad track on the east side. On the day in question I saw the watchman when he came out of this tower or house. At the time he stepped out Thomas Pitt had just entered around the curve, had come into the center of the road, and had entered upon the spur-track. The watchman stepped out and gradually walked on out in the center of the road. As he came out from the tower house and walked to the middle of the street he had in his hand a flag and a stop sign. He had them down to his side, didn't have them up. *** In my opinion the watchman was about six or seven or eight feet from the mule's head at the time he threw up his signal. *** There was a freight train coming from the South and the passenger train which hit Thomas Pitt, was coming from the North. *** He drove up on the switch-track and time the train hit his mule's head the mule was on the fast line track. I don't mean the spur-track. He didn't stop. He didn't look, but drove up on the track."

Another eyewitness said: "There is a driveway that runs South into the main street running from Rocky Mount to Wilson. Thomas Pitt came out of this driveway from the side station and he turned into the highway, headed toward the railroad and about the time he drove into the Main Street headed toward the railroad, this flagman walked out, and both of them started to...