Sanders v. Atlantic Coast Line R. Co.

• Decision Date: 18 November 1931
• Docket Number: 54.
• Citation: Sanders v. Atlantic Coast Line R. Co., 161 S.E. 320, 201 N.C. 672 (N.C. 1931)
• Parties: SANDERS v. ATLANTIC COAST LINE R. CO.
• Court: North Carolina Supreme Court

161 S.E. 320

201 N.C. 672

SANDERS v. ATLANTIC COAST LINE R. CO.

No. 54.

Supreme Court of North Carolina

November 18, 1931

Appeal from Superior Court, Wilson County; W. C. Harris, Judge.

Action by Ruby Sanders against the Atlantic Coast Line Railroad Company.Judgment for plaintiff, and defendant appeals.

No error.

Although ordinance penalized engineer for failure to ring bell while operating locomotive through town, instruction authorizing recovery against railroad for crossing collision injuries, if failure to ring bell proximately caused injuries, held not erroneous, since ordinance placed duty on railroad.

The evidence was to the effect that plaintiff, on a dark night about seven o'clock p. m., February 1, 1930, while riding with her husband in a two door Ford coach, going west on Green street in Wilson, N. C., was seriously injured by defendant's train at the crossing of defendant's railroad and Green street.

Dr. T P. Lane, a physician and surgeon (local surgeon for defendant), after describing her injuries, testified, in part: "During the first few days she was in the hospital, which I include in the first five days, this lady's condition was very grave.We were very apprehensive about her.It looked as though she was going to die in spite of all we could do, required stimulation in various forms and injection of fluids into her veins and after that she showed signs of improvement."

Plaintiff at the time of the injury, was 38 years of age, and was the mother of three little children.

Green street in the town of Wilson, where plaintiff was injured, at the point where the line of railway of the defendant crosses said street, bears a heavy and congested traffic of automobiles, motortrucks, wagons, bicycles, and pedestrians.It is one of the principal streets of the town of Wilson, a town of about 15,000 people, and the double track of the railroad of the defendant crosses said street about midway the length thereof.The passenger station of the defendant is situate between Nash and Green streets, and the umbrella sheds of the passenger station extend from Nash street to Green street along by the side of the railroad track.The defendant operated a great number of trains, switching and yard engines, each day on its tracks, all of which run over and across Green street.There was a quantity and a congestion of street traffic along said street.Large number of trains regular and special, on stated schedules and without schedule, and a number of shifting and yard engines and cars are operated by the defendant over said crossing.

J. O. Hearne, a witness for plaintiff, testified, in part: "Cars cross there almost continuously when traffic is heavy, makes heavy traffic.What I mean to say is this,--in the busy season at certain hours of the day it is a great deal of traffic.From five o'clock in the afternoon until eight at night the traffic is pretty heavy at that crossing."

Lloyd Lucas, a witness for plaintiff, a police officer, testified in part: "I would say from 350 to 400 cars a day pass there at that time of the year.I am familiar with all that territory.That house on the East side of the railroad track, situate on your left going up towards the track, that house from the first railroad track, from the main line, I don't know exactly how far it is, but not over 25 steps from the main line to the house.The ice cream factory is situate just across on the other side."

Plaintiff's husband, who was driving the Ford, going westward, on approaching the defendant's tracks on Green street, slowed down to 3 or 4 miles an hour and crept upon the track at practically no rate of speed to cross the tracks.The defendant's train gave no signal of its approach to the crossing; it was rolling, practically making no noise.It was a fast passenger train going north, only runs during the winter months, running between 25, 30, and 40 miles an hour as it approached Green street.It was a fast Florida train from Florida to New York, carrying winter tourists.It does not stop in Wilson.When plaintiff's husband saw the train, he brought his car to a stop and was able to get out.A witness testified "I saw a man sail out."But plaintiff was struck and the auto badly torn up.

C. P. Hocutt, a traffic officer in Wilson, witness for plaintiff, testified, in part: "Since I was in Court yesterday I have been to Green Street crossing and measured the distance with a tape line from the northbound track to the corner of the house on Green Street.The exact distance from the corner of the house to the end of the cross tie nearest the railroad is 46 1/2 feet."

A. C. Sanders, husband of plaintiff testified, in part: "I own the car.*** My wife is not in business with me and she has nothing whatever to do with my business.*** As we turned into Green Street going West we were driving towards the railroad.Leaving the buildings beyond the first block the ice cream factory is on the North side of Green Street next to the railroad, and a couple of little frame buildings on the left.Very poor lights on the East side.I don't think any lights on it.*** After passing the corner of the house if there had been any obstruction it was dark and I couldn't see.There were lights across the railroad.The railroad shelter was brilliantly lighted across the track.When I passed the house you could see the corner of the shed.That extends up almost to Green Street.I couldn't see anything else that night.The station is beyond the shed.I don't know what kept me from seeing the train which was on my side of the shed.I looked.When I saw it it was right on me.The light was absolutely burning on the train.I don't know what would have kept me from seeing the train if I had cut my eyes and had turned my head.I did look and when I saw it I stopped.The first time I saw the train I was right on the track.Just time I saw it I was right on the track.On the other side, looking from West to the East it was no light.Looking West from my side it was brilliantly lighted from the station clear on down to the filling station.If I had looked I don't know what there was to keep me from seeing.When I saw it I stopped.My engine was right on the track, right at the track and the train hit it.I jumped out and my wife didn't have time to get out.*** I seen the train when it was right on me.I was right in front of it then.I didn't see it before.I had not heard it.I did not hear the whistle blow nor the bell ring.I said yesterday I did not hear it.If I had heard it I would have stopped.I didn't hear either the bell or the whistle."

L. W. Brady, a witness for plaintiff, testified, in part: "If I am any judge of speed he(the engineer) was running between 35 and 40 miles an hour.*** I can hear pretty good but this train ran pretty fast and it is on you before you know it."

An ordinance of the town of Wilson is as follows: "Section 1--No railroad company or engineer in charge of any train of any railroad company shall run or operate in or through the Town of Wilson any locomotive or car or trains of cars at a higher rate of speed than ten miles per hour, and every engineer in charge of any train or locomotive running through the Town of Wilson shall ring the bell of such locomotive while same is being run and operated through said town; no railroad train or locomotive shall block any street crossing for a longer period than five minutes, and any engineer in charge of any train or locomotive of any railroad company violating any of the provisions of this section, shall be fined not more than ten dollars for each and every offense; provided, nevertheless, that the rate of speed hereinbefore prescribed shall not apply to any train running in or through the said town between the hours of 11 o'clock P. M., and six o'clock A. M., but all trains operating between such hours may be run and operated at a reasonable rate of speed."

The defendant denied negligence, and set up the plea of contributory negligence.

The issues submitted to the jury, and their answers thereto, were as follows:

"1.Was the plaintiff injured by the negligence of defendant, as alleged in the complaint?Answer: Yes.

"2.In what amount was the plaintiff damaged?Answer: $2500.00."

The court below rendered judgment on the verdict.The defendant made numerous exceptions and assignments of error, and appealed to the Supreme Court.

Thos. W. Davis, of Wilmington, F. S. Spruill, of Rocky Mount, and Finch, Rand & Finch, of Wilson, for appellant.

W. A. Lucas and W. D. P. Sharpe, Jr., both of Wilson, for appellee.

CLARKSON J.

The defendant, at the close of plaintiff's evidence and at the close of all the evidence made motions in the court below for judgment as in case of nonsuit.C. S. § 567.The motions were overruled, and in this we can see no error.

It is the well-settled rule of practice and accepted position in this jurisdiction that, on a motion to nonsuit, the evidence which makes for the plaintiff's claim and which tends to support her cause of action, whether offered by the plaintiff or elicited from the defendant's witnesses, will be taken and considered in its most favorable light for the plaintiff, and she is entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.

The evidence, taken in its most favorable light for plaintiff was to the effect that A. C. Sanders was the owner of the automobile in which plaintiff was riding.He was driving the automobile and plaintiff had no control over the car or driver.She was an occupant, guest, or gratuitous passenger (if she can be so designated) of her husband.Ordinarily, under such circumstances, negligence on the part of the driver of the car...