Rigsbee v. Atl. Coast Line R. Co

• Court: North Carolina Supreme Court
• Writing for the Court: ADAMS
• Citation: Rigsbee v. Atl. Coast Line R. Co, 190 N. C. 231, 129 S.E. 580 (N.C. 1925)
• Decision Date: 07 October 1925
• Docket Number: (No. 59.)
• Parties: RIGSBEE. v. ATLANTIC COAST LINE R. CO.

129 S.E. 580

(190 N.C. 231)

RIGSBEE.

v.ATLANTIC COAST LINE R. CO.

(No. 59.)

Supreme Court of North Carolina.

Oct. 7, 1925.

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

Action by Agnes Rigsbee, administratrix of Edward W. Rigsbee, deceased, against the Atlantic Coast Line Railroad Company. Judgment for plaintiff, and defendant appeals. No error.

The instruction refused to defendant was as follows:

"The railroad track being a place of danger, the plaintiff's intestate was required, before entering upon it, to use due and reasonable care to avoid being injured by a passing train; he must stop, look, and listen and use all reasonable care to ascertain if a train is approaching. If the view of the track should be in any way obstructed at the time he is about to go on it, then he is required to be more careful; he must listen carefully to ascertain if a train is approaching. Now, the burden of proof is put by the law on the plaintiff, who must satisfy you by the greater weight of the evidence that the intestate did use all necessary care as explained to you, before attempting to cross the track, and, if this was not done, then you are instructed to answer the issue as to negligence, 'No.' "

Civil action to recover damages for the intestate's death which occurred March 15, 1923. The jury returned the following verdict:

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

"(2) Did the plaintiff's intestate, by his own negligence, contribute to his death? A. No.

"(3) What damage, if any, is plaintiff entitled to recover? A. $15,000."

Defendant appealed from the judgment, assigning error.

Thos. W. Davis and V. E. Phelps, both of Wilmington, F. S. Spruill, of Rocky Mount, and Bridgers & Bourne, of Tarboro, for appellant.

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

ADAMS, J. The circumstances under which the plaintiff says her intestate suffered death are set out in the complaint and related in the testimony of her witnesses. The injury occurred about three-quarters of a mile from South Rocky Mount. At this place the defendant has two main lines, using the east line for north-bound trains and the west line for trains moving southward. To the east of the north-bound line is a track known as the lead track or the "Florence lead, " connecting the north and south freightyards and the Y. D. tower. Between the east and west main lines and between the east main line and the Florence lead the distance is about 3 feet; 10 feet east of the Florence lead there is a building designated in the record as the "D. I. Office." The roadbed is lower than the adjacent ground, and for this reason the defendant keeps up a bridge extending from the embankment in front of the D. I. office to the lead track and another extending from the west embankment to the south-bound line. Near the office were other tracks or switches, the relative situation of which it is not necessary to describe. On March 15, 1923, to make use of needed space in one of the yards, the defendant pulled down on the lead track a freight train made up for Wilmington, and left it standing near the place of the injury. Close to the bridge extending from the east embankment to the lead track there was an open space between two of the cars in this train covering a distance, according to the several estimates of the witnesses, ranging from 5 to 50 feet. There is evidence that for a number of years this crossing has been used, not only by the employees of the defendant, but by others; one witness testifying that in his opinion 1, 000 people cross the track at this place every day.

The plaintiff's intestate was an employee of the defendant, serving in the capacity of switchman or brakeman. He had been called for the 3 o'clock shift, and a short time before his death had been seen cleaning his lantern on the rear porch of the D. I. office. A short time afterwards (about 3:10 p. m.) the defendant's train with 7 or 8 cars approached on the north-bound track. It had come from Florence, and was going in the direction of Rocky Mount. According to the plaintiff's evidence, it was running 40 miles an hour; and, while it is usual for trains to blow for the crossing, on this occasion no signal or warning was given by sounding the whistle or ringing the bell. The plaintiff's intestate, coming from the D. I. office, passed through the open space between the box cars, and, while in the act of crossing the east main line, was struck by the engine and killed. Evidence on behalf of the defendant tended to show that the proper signals were given and that the intestate heedlessly ran upon the track in front of the train and solely by his own negligence caused his injury and death.

The defendant contends that upon its motion the action should have been dismissed as in case of nonsuit. Exceptions 2 and 4. This position cannot be maintained. It was unquestionably the duty of the defendant in the exercise of due care to give timely warning of the train's approach by sounding the whistle or ringing the bell, or by both means, if reasonably necessary, and, if it failed to perform this duty, such failure was evidence of negligence, requiring determination by the jury of all matters involved in the first issue. Costin v. Power Co., 181 N. C. 196, 106 S. E. 568; Jackson v. Railroad, 181 N. C. 153, 106 S. E. 495; Perry v. Railroad, 180 N. C. 290, 104 S. E. 673; Bagwell v. Railroad, 167 N. C. 611, 83 S. E. 814; Hill v. Railroad, 166 N. C. 592, 82 S. E. 864; Jenkins v. Railroad, 155 N. C. 203, 71 S. E. 213; Norton v. Railroad, 122 N. C. 910, 29 S. E. 886: Hinkle v. Railroad, 109 N. C. 472, 13 S. E. 884, 26 Am. St. Rep. 581.

The specific contention that as a proposition of law the intestate's negligence was essentially the sole cause of his injury and death, and a consequent bar to the recovery of damages, is not in accord with our decisions. We adhere to the principle that qualifying facts and conditions may so complicate the question of contributory negligence as to make it one for the jury, even when there has been a failure to look or listen (Cooper v. Railroad, 140 N. C. 209, 52 S. E. 932, 3 L. R. A. [N. S.] 391, 6 Ann. Cas. 71); and surely upon the facts disclosed in the case at bar we...