Temple v. Hawkins, 27.

• Decision Date: 17 September 1941
• Docket Number: No. 27.,27.
• Citation: 16 S.E.2d 400,220 N.C. 26
• Parties: TEMPLE. v. HAWKINS et al.
• Court: North Carolina Supreme Court

16 S.E.2d 400

220 N.C. 26

TEMPLE.

v.HAWKINS et al.

No. 27.

Supreme Court of North Carolina.

Sept. 17, 1941.

Appeal from Superior Court, Pasquotank County; Henry L. Stevens, Jr., Judge.

Action by Charlie Temple against M. S. Hawkins and another, receivers of the Norfolk Southern Railroad Company, for injuries sustained by plaintiff when truck which he was driving was struck by defendants' train. From a judgment for defendants as in case of nonsuit, the plaintiff appeals, assigning error.

Affirmed.

Forrest V. Dunstan and McMullan & McMullan, all of Elizabeth City, for appellant.

J. Kenyon Wilson, of Elizabeth City, for appellees.

SCHENCK, Justice.

This is an action to recover damages for personal injuries alleged to have been negligently inflicted upon the plaintiff by the defendants. There are allegations by the plaintiff of negligence and of last clear chance on the part of the defendants, and by the defendants of contributory negligence on the part of the plaintiff.

There was evidence tending to show that the plaintiff was driving the loaded truck of his employer on the street or public road across the railroad track of the defendants in or near Elizabeth City; that the track ran practically north and south and that the street or public road ran practically east and west; that there were two spur tracks running practically parallel with the main track which the public road also crossed; that the plaintiff drove the truck up to the side track more distant from the main track, about 30 feet therefrom, and stopped; that the driver looked south down the main track and saw the defendants' train at the depot, about 1, 500 feet away from him, either moving or in the act of starting north on the main track; that the plaintiff then drove the truck east across the two side tracks and on to the main track; that the truck, for unrevealed cause, stalled astride the main track; that the plaintiff operated the mechanism of the truck in an endeavor to make it move on across the track; that neither the whistle was blown nor the bell rung, nor other danger signal given from the defendants' engine, but a passenger in the truck said to the plaintiff, the driver of the truck: "Look out. There's the train"; the plaintiff then tried to leave the truck, but got only as far as the running board thereofwhen the truck was struck by the engine, and the plaintiff was hurled down the track and injured; that the train approached the truck at a speed of 25 or 30 miles per hour and ran...