Southern Ry. Co. v. Woltz, 193

• Citation: 140 S.E.2d 738,264 N.C. 58
• Decision Date: 17 March 1965
• Docket Number: No. 193,193
• Parties: SOUTHERN RAILWAY COMPANY, v. C. B. WOLTZ, Administrator de bonis non of the Estate of William S. Matthews, Deceased.
• Court: United States State Supreme Court of North Carolina

Page 738

140 S.E.2d 738

264 N.C. 58

SOUTHERN RAILWAY COMPANY, v. C. B. WOLTZ, Administrator de bonis non of the Estate of William S. Matthews, Deceased.

No. 193.

Supreme Court of North Carolina.

March 17, 1965.

W. T. Joyner, Raleigh, George B. Mason, Mullen, Holland & Harrell, by James M. Mullen, Gastonia, for plaintiff appellant-appellee.

Davis & White, by James R. Davis, Kings Mountain, Whitener & Mitchem, by Basil L. Whitener, Wade W. Mitchem, Gastonia, for defendant appellant-appellee.

HIGGINS, Justice.

The appeal requires the Court to determine whether on the plaintiff's appeal the evidence, in the light most favorable to the railroad, ignoring evidence contra, was sufficient to permit a legitimate inference the collision resulted from the negligence of Dr. Matthews; and on the defendant's appeal, whether the evidence in the light most favorable to the defendant, ignoring evidence contra, was sufficient to permit a legitimate inference the collision and damages resulted from the negligence of the railroad.

Under proper pleadings, evidence of actionable negligence takes the case to the jury unless contributory negligence appears as a matter of law. A party whose proof shows his adversary was guilty of actionable negligence is entitled to go to the jury unless he defeats his own cause by showing he was guilty of contributory negligence as a matter of law. With respect to the quantum of proof, there is no essential difference between negligence and contributory negligence. On the latter issue the parties reverse positions. In determining liability each party is charged with the duty of exercising such due care as the exigencies and circumstances of the occasion may require. If the evidence is conflicting on issues of negligence and contributory negligence, such are issues of fact and require jury determination. These issues may not be answered by the court as a matter of law. Weaver v. Bennett, 259 N.C. 16, 129 S.E.2d 610; Kinlaw v. Willetts, 259 N.C. 597, 131 S.E.2d 351; Pruett v. Inman, 252 N.C. 520, 114 S.E.2d 360; Holderfield v. Rummage Bros. Trucking Co., 232 N.C. 623, 61 S.E.2d 904.

According to the plaintiff's evidence, its train, consisting of a large diesel electric road switch engine and six freight cars, approached from the north the point where State Road No. 1403 crosses the railroad double tracks at right angles. From the road adjacent to the crossing a motorist had an unobstructed view of a train's approach from the north for approximately a mile. The train was running south at 35 to 40 miles an hour as it approached the crossing. The time was 1:30 p. m. The weather was fair and cold. Railroad crossing signs were in place on Road No. 1403. The defendant's intestate was familiar with the crossing. He came to a momentary stop near the crossing, looked to the south, and moved onto the track in front of the train. The train struck the automobile, causing damage to the...