Smith v. Atlantic & Y. Ry. Co.

• Decision Date: 27 January 1931
• Docket Number: 401.
• Parties: SMITH v. ATLANTIC & Y. RY. CO.
• Court: North Carolina Supreme Court

156 S.E. 508

200 N.C. 177

SMITH v. ATLANTIC & Y. RY. CO.

No. 401.

Supreme Court of North Carolina

January 27, 1931

Appeal from Superior Court, Guilford County; McElroy, Judge.

Action by L. E. Smith, administrator of Boyd Smith, against the Atlantic & Yadkin Railway Company. From a judgment for plaintiff, defendant appeals.

No error.

Conflicting evidence whether automobile guest was killed through negligence of defendant railroad held for jury.

This is an action to recover damages for the wrongful death of plaintiff's intestate, who was fatally injured as the result of a collision, at a public crossing in the city of Greensboro, between an automobile in which plaintiff's intestate was riding as a passenger, and an engine and tender owned and operated by the defendant.

The collision occurred at about 8 o'clock p. m. on December 5, 1928. Plaintiff's intestate died as the result of his injuries about thirty minutes after the collision. This action was begun on February 4, 1929.

The issues submitted to the jury, involving defendant's liability and the damages sustained by the plaintiff resulting from the death of his intestate, were answered as follows:

"1. Was plaintiff's intestate killed through the negligence of the defendant, Atlantic & Yadkin Railway Company, as alleged in the complaint? Answer: Yes.

"2. Did plaintiff's intestate, by his own negligence, contribute to his death, as alleged in the answer? Answer: No.

"3. What damages, if any, is plaintiff entitled to recover? Answer: $21,000.00."

From judgment on the verdict that plaintiff recover of the defendant the sum of $21,000 and the costs of the action, defendant appealed to the Supreme Court.

Frank P. Hobgood, of Greensboro, for appellant.

Brooks, Parker, Smith & Wharton, of Greensboro, for appellee.

CONNOR J.

It may be conceded, as contended by defendant, that there was evidence at the trial of this action tending to show that the driver of the automobile in which plaintiff's intestate was riding as a passenger when he was injured and killed as the result of its collision with defendant's engine and tender, at a grade crossing in the City of Greensboro, was negligent and that his negligence was a proximate cause of the death of plaintiff's intestate. There was evidence to the contrary. There was evidence, also, tending to show that defendant was negligent, as contended by plaintiff, and that its negligence was, at least, one of the proximate causes of the injuries sustained by plaintiff's intestate, which resulted in his death. There was conflict in the evidence as to whether the driver of the automobile was negligent, and also as to whether the defendant was negligent. Conceding that both were negligent, there was conflict also in the evidence as to whether the negligence of the driver of the automobile or the negligence of the defendant was the sole, proximate cause of the death of plaintiff's intestate, or as to whether the negligence of both concurred as proximate causes of his death.

This evidence was properly submitted to the jury on the first issue. The law, certainly in this jurisdiction, applicable to the facts as the jury might find them from the conflicting evidence pertinent to the first issue, is well settled by authoritative decisions of this court. It has been frequently stated and applied in cases growing out of collisions, where the plaintiff was a passenger in an automobile and was injured as the result of a collision between the automobile in which he was riding at the time he was injured and another automobile or a train. Thus in White v. Realty Co., 182 N.C. 536, 109 S.E. 564, 565, it is said:

"Conceding that McQuay, the owner and driver of the Ford machine, was negligent, as it is quite apparent from the evidence he was, yet this would not shield the defendant from suit if its negligence was also one of the proximate causes of the plaintiff's injury. Crampton v. Ivie, 126 N.C. 894, 36 S.E. 351. There may be two or more proximate causes of an injury; and where this condition exists, and the party injured is free from fault, those responsible for the causes must answer in damages, each being liable for the whole damage, instead of permitting the negligence of the one to exonerate the others. This would be so though the negligence of all concurred and contributed to the injury, because with us there is no contribution among joint tort-feasors. Wood v. Public-Service Corp., 174 N.C. 697, 94 S.E. 459, 1 A. L. R. 942."

Again in Albritton v. Hill, 190 N.C. 429, 130 S.E. 5, 6, it is said: "In reference to concurrent negligence we have held that, where two proximate causes contribute to an injury, the defendant is liable, if his negligent act brought about one of such causes. Mangum v. R. R., 188 N.C. 689, 125 S.E. 549; Hinnant v. Power Co., 187 N.C. 288, 121 S.E. 540; White v. Realty Co., 182 N.C. 536, 109 S.E. 564; Wood v. Public-Service Corp., 174 N.C. 697, 94 S.E. 459, 1 A. L. R. 942; Harton v. Telephone Co., 141 N.C. 455, 54 S.E. 299. We have also held that negligence on the part of the driver of a car will not ordinarily be imputed to another occupant, unless such other occupant is the owner of the car or has some kind of control over the driver. See cases cited in the concurring opinion in Williams v. R. R., 187 N.C. 348, 121 S.E. 608."

In the more recent case of Earwood v. R. Co., 192 N.C. 27, 133 S.E. 180, 181, where the judgment in favor of the plaintiff and against the defendant, for damages for the wrongful death of plaintiff's intestate, resulting from a collision between the automobile in which plaintiff's intestate was riding, as a passenger, and defendant's train, at a public crossing, was affirmed on defendant's appeal to this court, it is said: "Of course, if the negligence of the driver is the sole, only, proximate cause of the injury, the injured party could not recover." Where, however, as in that case, the negligence of the defendant was the sole, proximate cause of the injury, or such negligence concurred with the negligence of the driver of the automobile, in which plaintiff or his intestate was riding, as a proximate cause of the injury or death, the plaintiff is entitled to recover of the defendant the damages resulting from the injury or death, unless the plaintiff or his intestate by his own negligence contributed to his injury or death, as the case may be. In the latter case, recovery is denied, because the negligence of the plaintiff or of his intestate concurred with and contributed to the injury or death. Upon well-settled principles of the common law, which are in force in this state, except where modified or abrogated by statute, the contributory negligence of the plaintiff bars recovery of damages resulting from an injury, although the negligence of the defendant was also a proximate cause of the injury. The trend of legislation and of judicial decisions, however, is not favorable to an extension of the principles on which the doctrine of contributory negligence as a bar to recovery of damages caused by the negligence of the defendant rests. The trend is decidedly to the contrary, especially in actions by employees to recover of employers damages for personal injuries caused by the negligence of the employer. In this state, while the driver of an automobile approaching a public crossing is required by statute in certain instances to stop within a specified distance from the crossing, failure to comply with the statutory requirement cannot be relied on as contributory negligence in an action by the driver to recover damages caused by the negligence of the railroad company. Code 1927, § 2621 (48).

There was no error in the refusal of the trial court to allow defendant's motion...