Quinn v. Atl. & Y. Ry. Co, 683.

CourtUnited States State Supreme Court of North Carolina
Citation195 S.E. 85,213 N.C. 48
Decision Date02 February 1938
Docket NumberNo. 683.,683.
PartiesQUINN. v. ATLANTIC & Y. RY. CO. et al.

195 S.E. 85
213 N.C. 48

CO. et al.

No. 683.

Supreme Court of North Carolina.

Feb. 2, 1938.

[195 S.E. 86]

Appeal from Superior Court, Guilford County; Frank M. Armstrong, Judge.

Action by Esther Ann Quinn, by her next friend, Helen Dover Quinn, against the Atlantic & Yadkin Railway Company and others to recover for personal injuries, wherein a nonsuit was granted as to all except named defendant. Verdict and judgment for plaintiff after named defendant's demurrer to the evidence and motion for a judgment of nonsuit was overruled, and named defendant appeals.

New trial.

Civil action to recover damages for personal injuries, alleged to have been caused by the joint and concurrent negligence of the defendants.

The record discloses that on the afternoon of November 7, 1935, plaintiff and a student friend were riding as invited guests with C. W. Simmons in his Terra-plane automobile when it was hit by a train operated by the defendant railway company at what is known as the Cornwallis road crossing in the city of Greensboro, resulting in serious injury to plaintiff. The purpose of the trip was to give the young ladies a ride around the city. C. W. Simmons was at the time employed by defendant partnership, Oettinger Lumber Company.

It appears from the plaintiff's evidence that the train approached the crossing at a speed of 25 or 30 miles an hour without signals or warning of any kind; and that plaintiff's view was obstructed by reason of a fence, shrubbery, rosebushes, and bus station on defendant's right of way.

It is also in evidence that C. W. Simmons stopped his automobile 40 or 50 feet from the crossing; neither saw nor heard the train; proceeded from this point, in second gear, at a speed of 12 to 15 miles an hour; and he says: "The first knowledge that I had of the presence of this engine and train was when I was on the track and it hit me. * * * That was the first time that I knew there was a train anywhere about."

The automobile was equipped with a radio, but was not turned on according to plaintiff's testimony. Defendant's evidence is that immediately after the collision it was playing loud enough to interfere with conversation between persons standing near the car.

"Defendant's evidence is also to the effect that the fence, shrubbery, and rosebushes on defendant's right of way were not more than 5 feet high; that the view from the highway was not obstructed; and that ample and timely warning was given of the train's approach.

Upon the call of the case for trial, the plaintiff suffered a voluntary nonsuit as to the defendant partnership, Oettinger Lumber Company, as C. W. Simmons was not about the business of his employers at the time of the injury. Liverman v. Cline, 212 N.C. 43, 192 S.E. 849; Dicker-son v. Refining Co., 201 N.C. 90, 159 S. E. 446.

After the evidence was in, the plaintiff announced that she would take a voluntary nonsuit as to C. W. Simmons. De-

[195 S.E. 87]

fendant railway company objected; objection overruled; exception.

The defendant demurred to the evidence and moved for judgment of nonsuit. Overruled; exception.

The case was then submitted to the jury on the usual issues of negligence, contributory negligence, and damages, which resulted in verdict and judgment for plaintiff.

Defendant railway company appeals, assigning errors.

Hobgood & Ward and Francis I. Anderson, all of Greensboro, for appellant.

B. L. Fentress, R. R. King, Jr., and Harry Rockwell, all of Greensboro, for...

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