Pope v. Atl. Coast Line R. Co

• Decision Date: 31 January 1928
• Docket Number: (No. 54.)
• Citation: Pope v. Atl. Coast Line R. Co, 141 S.E. 350, 195 N.C. 67 (N.C. 1928)
• Court: North Carolina Supreme Court
• Parties: POPE . v. ATLANTIC COAST LINE R. CO.

141 S.E. 350

(195 N.C. 67)

POPE .

v.ATLANTIC COAST LINE R. CO.

(No. 54.)

Supreme Court of North Carolina.

Jan. 31, 1928.

Clarkson and Connor, JJ., dissenting.

Appeal from Superior Court, Edgecombe County; Nunn, Judge.

Action by F. M. Pope against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. Reversed.

Nash and Marigold streets, in the city of Rocky Mount, are much used thoroughfares by pedestrians and vehicles. These two streets constitute one thoroughfare. Nash street is on the Nash county side, and Marigold street on the Edgecombe county side. The street runs practically east and west. Three tracks of the defendant railroad cross this street at grade. The tracks of the railroad run approximately north and south at the crossing. West Main street intersects Nash street west of the railroad track. On the 15th day of August, 1925, the plaintiff, an elderly man, was city cotton weigher. The cotton yard is east of all the tracks of the defendant. On said date, about 10 or 11 o'clock in the morning, the plaintiff started to the cotton yard along Nash street, traveling east. According to his testimony, he stopped at the corner of Nash and Main streets and looked south towards the depot of defendant, which was approximately 455 feet south of the crossing, and saw a passenger train standing still, headed north or towards the crossing. The plaintiff crossed west Main street, which is about 35 feet wide, and proceeded along the south side of Nash street until he reached a point about 8 or 10 feet west of the first track of defendant, crossing said Nash street. He looked again to his right or south towards the depot and saw this passenger train still standing at the station. He then walked east 8 or 10 feet to the first track, and then turned to his left, walked alongside of this track north, with his back to the station, across Nash street, which is 40 or 50 feet wide. As he was proceeding north crossing Nash street, he was delayed by two automobiles about a half minute. Upon reaching the north side of Nash street he then turned east again, and crossed the south-bound track of defendant, and approached the north-bound track, and, while on the north-bound track, was struck by said passenger train and injured.

His testimony further showed that the train gave no signal by whistle or bell. The engineer of the train testified that he did not blow the whistle for this crossing because there was an ordinance of Rocky Mount in force which prohibited the blowing of the whistle. There was further testimony for the plaintiff to the effect that the train was drifting and was making no noise. The evidence of plaintiff tended to show that the train was going 8 or 10 miles an hour at the time plaintiff was struck. Plaintiff testified that the track where he was struck was "as straight as an arrow, " and that a man standing within 8 feet of the track upon which he was injured could see 200 yards south and to Tar river on the north. There was nothing at the crossing to obstruct the vision. Plaintiff said:

"Both engineer and fireman were bound to see if they had been looking—not a stick in the way. * * * The engineer could see me at this time —nothing in the world to keep him from it There was nothing between me and where I saw that engine but the iron and cross-ties. There are three tracks at this place."

The issues and answers of the jury thereto were as follows:

"(1) Was the plaintiff injured by the negligence of the defendant, as alleged in the complaint? A. Yes.

"(2) Did the plaintiff by his own negligence contribute to his injury? A. No.

"(3) What damage, if any, is the plaintiff entitled to recover of the defendant? A. $5,000."

From the judgment on the verdict the defendant appealed, assigning errors.

Spruill & Spruill, of Rocky Mount, and Gilliam & Bond, of Tarboro, for appellant.

R. T. Fountain, of Rocky Mount, and Geo. M. Fountain, of Tarboro, for appellee.

BROGDEN, J. The evidence of plaintiff was to the effect that while traveling along Nash street and arriving at a point 8 or 10 feet west of the first track of defendant railroad, crossing said street, he looked to his right or south a distance of 455 feet, and saw defendant's passenger train headed north, towards the crossing, but standing still. Thereupon he pursued his course eastwardly 8 or 10 feet until he reached the first track of defendant. He then turned to his left northwardly to cross Nash street, with his back to the train. Two automobiles passed along the street and delayed his journey about a half minute. He reached the north side of Nash street and then turned again eastwardly, walking across the south-bound track, and stepped upon the north-bound track, and while walking across said northbound track was struck by said train. The plaintiff was familiar with the crossing and crossed there every day. He did not look for the train from the time he was 8 or 10 feet west of the first track. He walked to the first track without looking. He then turned northward with his back to the train and walked 40 or 50 feet without looking. He then turned eastward and walked approximately 25 or 30 feet across the southbound track without looking. He then stepped upon the north-bound track, without looking, and, according to his testimony, never looked at all while traveling a distance of "70 feet or probably a little more." The track at the crossing was as straight as an arrow, and there were no obstructions whatever, interfering with the view of the approaching train. The train was running slowly.

The evidence of plaintiff tended to show that the train gave no signal as it approached this important and much used crossing. The defendant therefore was guilty of negligence. Bagwell v. Southern R. Co., 107 N. C. 611, 83 S. E. 814; Williams v. Seaboard Air Line R. Co., 187 N. C. 348, 121 S. E. 608; Earwood v. Southern R. Co., 102 N. C. 27, 133 S. E. 180.

The defendant, however, contends that the testimony of plaintiff discloses such a plain disregard of the duty imposed by law upon a pedestrian at a railroad crossing as to bar his recovery. This is the decisive question in the case. There is a multitude of decisions by this court upon the subject of the duty of a pedestrian in attempting to cross a railroad track. The general rule is thus expressed by Brown, J., in Coleman v. Atlantic Coast Line R. Co., 153 N. C. 325, 69 S. E. 252:

"The law imposes the equal duty upon the traveler when he reaches a crossing and before attempting to go on the track to both look and listen for approaching trains, for the traveler by doing so, if there is nothing in his way, can most certainly prevent a collision and save himself from harm. When he reaches the track, it is no great hardship imposed upon the traveler to require him to exercise ordinary prudence and to cast his eye up and down the track. By so doing he has the last and most certain chance to prevent collisions and to save himself as...