Sawyer v. Southern Ry. Co.

• Court: North Carolina Supreme Court
• Writing for the Court: DEVIN; VALENTINE
• Citation: Sawyer v. Southern Ry. Co., 66 S.E.2d 639, 234 N.C. 164 (N.C. 1951)
• Decision Date: 19 September 1951
• Docket Number: No. 28,28
• Parties: SAWYER, v. SOUTHERN RY. CO. et al.

Page 639

66 S.E.2d 639

234 N.C. 164

SAWYER, v. SOUTHERN RY. CO. et al.

No. 28

Supreme Court of North Carolina.

Sept. 19, 1951

W. R. Francis, Waynesville, for plaintiff, appellant.

Joyner & Howison, Raleigh, Jones & Ward, Asheville, for defendants, appellees.

DEVIN, Chief Justice.

It has been repeatedly said by this Court that judgment of involuntary nonsuit may properly be entered when the plaintiff by his own testimony makes out a clear case of contributory negligence, and thus proves himself out of court. Hayes v. Western Union Tel. Co., 211 N.C. 192, 189 S.E. 499; Hampton v. Hawkins, 219 N.C. 205, 13 S.E.2d 227; Barlow v. City Bus Lines, 229 N.C. 382, 49 S.E.2d 793; Howard v. Bingham, 231 N.C. 420, 57 S.E.2d 401; Carruthers v. Southern Ry. Co., 232 N.C. 183, 59 S.E.2d 782. Here the plaintiff testified he saw the engine and cars backing toward him, and he stopped to see whether the train would continue on the sidetrack on which it was moving or turn into a spur track which crossed plaintiff's path. Instead of waiting to determine the event, plaintiff, according to his own testimony, walked over to some cars standing on the sidetrack on which the train was coming, and laid his hand on one of them or got between two of them, and was injured when the train continuing on the sidetrack pushed into those cars.

The fact that there was no light or trainman on the end of the train approaching would not relieve plaintiff of the duty to exercise ordinary care...