Quinn v. Atlantic & Y. R. Co.
| Decision Date | 02 February 1938 |
| Docket Number | 683. |
| Citation | 195 S.E. 85,213 N.C. 48 |
| Parties | QUINN v. ATLANTIC & Y. RY. CO. et al. |
| Court | North Carolina Supreme Court |
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.
In automobile occupant's action for injuries sustained in a crossing accident, instruction that automobile driver's negligence was the sole proximate cause of accident if it was palpable and gross was error, since it was sufficient to defeat recovery, if negligence of the driver was the sole proximate cause of the injury.
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 Terraplane 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; Dickerson 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. Defendant 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 appellee.
Stern & Stern, of Greensboro, for defendant Simmons.
The defendant's demurrer to the evidence or motion for judgment of nonsuit was properly overruled on authority of Brown v. R.R., 208 N.C. 57, 179 S.E. 25, and Bagwell v. R. R., 167 N.C. 611, 83 S.E. 814.
The court instructed the jury that, if the negligence of Simmons was the sole proximate cause of plaintiff's injury, she could not recover of the railway company. In this, there was no error. Powers v. Sternberg & Co., N.C., 195 S.E. 88, decided this day. He further gave four tests to be applied in determining whether Simmons' negligence was the sole proximate cause of plaintiff's injury. One was: "The negligence of the driver must be palpable and gross." In this, there was error. Smith v. Sink, 211 N.C. 725, 192 S.E. 108. It is true, the court was here quoting from Hinnant v. R. R., 202 N.C. 489, 163 S.E. 555, but what was said in that case was addressed to the question of nonsuit, and not to matters for the jury. Moreover, the language may be inexact, or too strong, even on demurrer to the evidence. It is enough if the negligence of the driver be the sole proximate cause of the injury. Powers v. Sternberg & Co., supra; Herman v. R. R., 197 N.C. 718, 150 S.E. 361.
The court also instructed the jury that Simmons "had a right to assume that reasonable and timely notice of the approach of defendant's train would be given." And further:...
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