Price v. Seaboard Air Line R. Co., 534

• Decision Date: 14 June 1968
• Docket Number: No. 534,534
• Citation: 161 S.E.2d 590,274 N.C. 32
• Court: North Carolina Supreme Court
• Parties: Bertha C. PRICE v. SEABOARD AIR LINE RAILROAD CO. Brooks M. PRICE v. SEABOARD AIR LINE RAILROAD CO. Linda Carol PRICE, by her Next Friend, Brooks M. Price v. tiSEABOARD AIR LINE RAILROAD CO. Janice Marie PRICE, by her Next Friend, Brooks M. Price v. SEABOARD AIR LINE RAILROAD CO.

Page 590

161 S.E.2d 590

274 N.C. 32

Bertha C. PRICE v. SEABOARD AIR LINE RAILROAD CO.

Brooks M. PRICE v. SEABOARD AIR LINE RAILROAD CO.

Linda Carol PRICE, by her Next Friend, Brooks M. Price v. tiSEABOARD AIR LINE RAILROAD CO.

Janice Marie PRICE, by her Next Friend, Brooks M. Price v. SEABOARD AIR LINE RAILROAD CO.

No. 534.

Supreme Court of North Carolina.

June 14, 1968.

Richardson & Dawkins, Monroe, and Cansler & Lockhart, Charlotte, for defendant appellee.

PARKER, Chief Justice.

The collision out of which these cases rise occurred about 10:45 a.m. on Saturday, 23 January 1965, a clear and dry day, at a grade crossing over the tracks of the Seaboard Air Line Railroad Company at rural paved road #1315 called the New Town Road. The scene of the collision was situate in a rural section of Union County about one and one-quarter miles southwest of the city limits of Monroe, North Carolina. Rural paved road #1315 is a two-lane secondary asphalt paved road about 16 feet wide and runs in a general eastwest direction, and the railroad tracks at the crossing run in a general northeast-southwest direction. There was a double yellow line in the center of rural paved road #1315 on both sides of the railroad crossing.

The automobile involved in the collision was owned by plaintiff Brooks M. Price and driven by his wife, plaintiff Bertha C. Price. Brooks M. Price was not in the automobile at the time of the collision.

At a pretrial conference the parties stipulated 'that the plaintiff Bertha Price, as his agent and servant, she being the wife of Brooks Price, and that on this occasion her operation of the automobile was within the scope of such agency as this was a family automobile.'

At the time of the collision Linda Carol Price, a 15-year-old daughter of plaintiff Bertha C. Price, was riding in the front seat with her mother. Janice Marie Price, a 12-year-old daughter of plaintiff Bertha C. Price, was riding in the back seat as a passenger in the automobile with her mother. In the back seat with her was a cousin, David Couick, about three years old. There is nothing in the evidence tending to show that the two infant passengers had any control over their mother's operation of the automobile.

Bertha C. Price and her two infant children were going from her brother's house to her sister-in- law's house, and the nearest and shortest way to go there was to cross the railroad tracks. The collision between her automobile and the train occurred about a mile from her brother's house. She was proceeding in a generally easterly direction towards Monroe. The highway at that place runs along more or less parallel with the track of the railroad for about a mile before the curve. After the curve, rural paved road #1315 is straight on to the railroad track. Plaintiff Brooks M. Price, husband of Bertha C. Price, went to the scene of the collision on the afternoon that it occurred. He testified on cross-examination: 'When I rounded the curve back west of the crossing, I had a clear, unobstructed view of the crossing for some 400 feet.' His wife, Bertha C. Price, testified that she did not know how far the road was straight after she rounded the curve. After the road passes the curve, there is an unobstructed view of the crossing for 500 feet.

Harold Couick is the next friend of his son David Couick, who has a suit against the railroad for injuries received by him in the crossing accident, and testified as follows on cross-examination.

'After you turn the curve, heading toward the crossing, you have an unobstructed view of the crossing. I wouldn't say the distance, but you can see the crossing. All the way from the time you pass the curve, you can see the crossing. You can see the cross-bucks on both sides of the crossing if you are looking for them. I am sure you could. If you were looking straight ahead, you would probably see them, but it might not register that they were there. They are there, though, and they were there then, and they were plainly visible. I believe that back west of the crossing in the eastbound lane of rural road #1315 there was on January 23, 1965, a great big white painted railroad X in the eastbound lane.'

Coming to the railroad crossing from a westerly direction on the left-hand side of the road was a bank around four and one-half feet high with a growth of weeds on it about four feet high or maybe a little more. This bank with the weeds reached back up the railroad track for about 200 feet.

Plaintiff Bertha C. Price testified as follows:

'As I came toward Monroe, near the intersection of this crossing, I was traveling about 30--35 miles per hour. I was familiar with this road. I had been over it before, and I knew there was a railroad track up there. I cannot say that I definitely remember seeing yellow lines in the road at that time. It was a two-way road. As I came close to the intersection of this road. I looked to my right. I saw nothing. As I looked to the left, I could see the bank on the side of the road, to my left, as I approached. This bank was situated to my left, running along the side of the track, the railroad track. The bank itself was about four feet or more, and there were weeds growing that were four feet and under. Some of them were at least four feet high. I could see nothing beyond those weeds.

'Well, as I came close to the track I must have been 30--40 feet from the track. I remember seeing the white cross-arm sign and immediately I saw the train down the track, the top of the train, and my daughter said, 'Mother, look out!' The train was coming from my left. It was, I would say, 300 feet down the track. I saw just the top part over the weeds. I was about 30--40 feet, I would say, 40 feet from the track at that time. I immediately applied my brakes and came to a full stop just over the first rail of the track. My right front wheel was over the track.

'Well, the train was at that time about 200 feet down the track. I put the car in reverse and had tried to get off the track. It moved back slightly, but then it stalled. It just wouldn't go back.

'Q. Well, did the engine continue to run?

'A. I don't think it did.

'COURT:

'Did I understand you to say that the engine to your automobile was not running at that time?

'A. I don't think it was running. I think it choked.

'As I came up to track and applied my brakes and stopped, the front of my car seemed to drop down.

'Q. When you put it in reverse, what did you do?

'A. For just a thought, the car moved back. Just for a thought, slightly it moved back.

'It stopped. The train at that time was about 200 feet down the track. I don't know anything else after that. I don't know if I was knocked unconscious or not, I probably was. I came to at the scene of the accident. I do not remember the train hitting the car.'

Plaintiff Bertha C. Price further testified that just before the collision occurred she did not hear any whistle or horn or anything. All she says is that she did not hear anything; she is not testifying it was not blowing.

Jim Clontz, a deputy sheriff of Union County, went to the scene of the collision. He thus described the condition of the road between the railroad tracks at that time: 'On the right-hand lane of travel, traveling east, the pavement was broken. There was about five to six inches drop-off between the tracks between the railroad tracks. That is on the right-hand lane of travel.'

Frank fowler, a deputy sheriff of Union County, lives close to where the collision occurred. He heard the collision and went to see it. He testified on direct examination as follows: 'I observed the condition of the railroad track at the crossing. It had beaten out holes between the tracks at the crossing. In the right-hand lane of travel heading toward Monroe it had beaten out bad, in my opinion, from 4 to 6 inch holes. You could see the crossties in a place or two. The right-hand lane was beaten out and in holes approximately four to six inches deep.' He testified on cross-examination: 'The asphalt is beaten out in holes. They range from the size of a five-gallon bucket to a tin tub.'

In the collision complained of plaintiff Mrs. Bertha C. Price and her two infant children received serious injuries, and the automobile of her husband, Brooks M. Price, was demolished and had no value except for junk.

Plaintiffs allege negligence on the railroad's part, Inter alia, as follows:

'a. It failed to maintain said crossing in a reasonable and safe condition, but on the contrary allowed the said crossing between its railroad tracks to become broken, chipped and deteriorated until a hole approximately six (6) inches deep had been allowed to accumulate and remain.

'b. That it allowed said crossing to become and remain in said dangerous and defective condition and in such a condition as to cause vehicles to choke down or stall while being driven over said crossing.'

A railroad is under a duty to exercise reasonable care to maintain its crossings over a public highway in a reasonably safe condition so as to permit safe and convenient passage over them by persons exercising ordinary care in the use thereof. A railroad company is not an insurer of the safety of travelers, and it is not required to maintain a foolproof crossing or a crossing where no injury is possible. In general, a railroad company is only liable for a defect or condition on its right of way over a public crossing which is caused by its negligence and which renders crossing unnecessarily unsafe and dangerous to persons having occasion to use the crossing, while in the exercise of reasonable care; and such negligence is a proximate cause of the injuries complained of. Parrish v. Atlantic Coast Line R. Co., 221 N.C. 292, 20 S.E.2d 299; Moore v. Atlantic Coast Line R. Co., 201 N.C. 26, 158 S.E. 556; Campbell v. High Point, T. & R.R. Co., 201 N.C. 102, 159 S.E. 327; Stone v. Seaboard Air Line R. Co., 197 N.C. 429, 149 S.E. 399; 74 C.J.S. Railroads § 719.

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