Stone v. Seaboard Air Line Ry. Co.

• Citation: 149 S.E. 399,197 N.C. 429
• Decision Date: 18 September 1929
• Docket Number: 101.
• Parties: STONE v. SEABOARD AIR LINE RY. CO.
• Court: North Carolina Supreme Court

149 S.E. 399

197 N.C. 429

STONE v. SEABOARD AIR LINE RY. CO.

No. 101.

Supreme Court of North Carolina

September 18, 1929

Appeal from Superior Court, Vance County; Barnhill, Judge.

Action by M. B. Stone against the Seaboard Air Line Railway Company. Judgment for plaintiff, and defendant appeals. No error.

Instruction that railroad must exercise due care to maintain crossing was not error, as assuming that crossing was a public crossing.

Action to recover damages resulting from injuries to plaintiff's automobile, caused by the negligence of defendant in failing to exercise due care (1) to maintain a public crossing, which passes over its track, in a reasonably safe condition; and (2) to stop its train before it struck and injured the automobile, which, by reason of the defective condition of said crossing, plaintiff was unable to drive off or move from said track in time to avoid the injury.

The issues submitted to the jury were answered as follows:

(1) Was the plaintiff's property damaged by the negligence of the defendant, as alleged? Answer: Yes.

(2) If so, did plaintiff by his own negligence contribute to his injury and damage? Answer: No.

(3) What damages, if any, is plaintiff entitled to recover? Answer: $1,500.

From judgment on the verdict, defendant appealed to the Supreme Court.

J. H Bridgers, of Henderson, and Murray Allen, of Raleigh, for appellant.

Perry & Kittrell, of Henderson, for appellee.

CONNOR J.

It is not contended by defendant on this appeal that there was error in the trial of this action with respect to the allegation that defendant was negligent in failing to exercise due care to stop its train, and thus avoid the injury to plaintiff's automobile, which was on defendant's track when it was struck and injured by defendant's train. The evidence in support of this allegation, although contradicted by evidence offered by defendant, was submitted to the jury under instructions which are free from error. Assignments of error based on exceptions to these instructions are not discussed in defendant's brief, filed in this court. They are therefore taken as abandoned on this appeal. Rule 28.

Defendant contends, however, that there was error in the trial with respect to the allegation that defendant was negligent in failing to exercise due care to maintain in a reasonably safe condition the crossing over its track, on which the automobile was standing when it was struck and injured by defendant's train. All the evidence tended to show that the crossing was defective, in that there was a hole on the right of way, just beyond the cross-ties, and that this hole was not discovered by plaintiff before the wheel of his automobile dropped into it, causing the running board on his automobile to rest upon the ground. Plaintiff was unable to drive his automobile off the track, or to move it therefrom before it was struck and injured by defendant's train which appeared after plaintiff had driven upon the crossing.

In his complaint plaintiff alleged that the crossing was a public crossing. This allegation was denied by defendant in...