Weston v. Southern Ry. Co.

• Decision Date: 14 September 1927
• Docket Number: 12.
• Parties: WESTON v. SOUTHERN RY. CO.
• Court: North Carolina Supreme Court

139 S.E. 237

194 N.C. 210

WESTON v. SOUTHERN RY. CO.

No. 12.

Supreme Court of North Carolina

September 14, 1927

Appeal from Superior Court, Beaufort County; Daniels, Judge.

Action by E. G. Weston against the Southern Railway Company. Judgment for plaintiff, and defendant appeals. Reversed, and nonsuit ordered.

The plaintiff alleged:

"That on the morning of October 1, 1926, about 3 o'clock a m., the plaintiff was driving his Dodge sedan from Charlotte to Salisbury on said public highway at a moderate rate of speed; that the night was dark and cloudy and a misting rain was falling; that the plaintiff was not familiar with the locality in which he was and did not know that said railroad track crossed the highway at that point that at said time the defendant *** negligently stopped and permitted to remain across the highway and upon the track of defendant a long freight train, which at said time was stationary, and which completely blocked the highway; that the defendant negligently failed to give any sign whatsoever of the presence of said freight train across the highway by means of lights or any other signal or device *** that the plaintiff could not, in the use of ordinary care, discover the presence of said train until he was too close to the same to avoid a collision, and in attempting to do so, his car was turned to the side of the road, where it was completely turned over and utterly demolished."

The defendant entered a general denial to the allegations of negligence contained in the complaint and pleaded contributory negligence of the plaintiff as the proximate cause of his injury and as a bar to recovery, alleging, in substance, that the plaintiff failed to stop, look, or listen, and in disregard of the "N. C. law stop sign" drove ahead without sufficient headlight, failing to keep the proper lookout, and at too great a speed.

Issues of negligence, contributory negligence, and damages were submitted to the jury, and the jury by its verdict found that the defendant was guilty of negligence, and that plaintiff was not guilty of contributory negligence, and assessed damages in the sum of $1,100.

From the judgment upon the verdict the defendant appealed, assigning error.

Harry McMullan, of Washington, N. C., for appellant.

Stewart & Bryan and H. C. Carter, all of Washington, N. C., for appellee.

BROGDEN J.

What duty does the law impose upon a motorist driving at night with reference to railroad grade crossings when the vision of the driver is obscured by rain, fog, or mist, and the pavement is wet and slippery?

In Coleman v. Railroad, 153 N.C. 322, 69 S.E. 251, Brown J., writes:

"A railroad crossing is itself a notice of danger, and all persons approaching it are bound to exercise care and prudence, and when the conditions are such that a diligent use of the senses would have avoided the injury, a failure to use them constitutes contributory negligence and will be so declared by the court."

Again in Holton v. Railroad, 188 N.C. 277, 124 S.E. 307, Hoke, C.J., declares the law thus: "It is the recognized duty of a person on or approaching a railroad crossing to 'look and listen in both directions for approaching trains if not prevented from doing so by the fault of the railroad company or other circumstances clearing him from blame,' and where, as to persons other than employees of the company, there has been a breach of this duty clearly concurring as a proximate cause of the injury, recovery therefor is barred."

3 C. S. 2621 (b), requires every person operating a motor vehicle, approaching a railroad grade crossing (except as otherwise provided therein), to stop "at a distance not exceeding 50 feet from the nearest rail." However, a failure to stop does not constitute contributory negligence per se, but the facts relating to such failure to stop may be considered with the other facts in the case in determining whether the plaintiff was guilty of contributory negligence.

In the present case the plaintiff testified that he did not see the railroad crossing at all by reason of the location of the track, and particularly by reason of the fact that the rain and mist obscured his vision, rendering it impossible for him to see the crossing more than 35 feet ahead. Hence, in the final analysis, the case presents the question of the duty of an automobile driver, operating his car in the nighttime, with his vision obscured by rain or other conditions upon the highway.

The identical question has not been determined in this state. In Hughes v. Luther, 189 N.C. 840, 128 S.E. 145, this court declared the law to be that if a motorist in the nighttime could see a truck parked by the roadside, in violation of C. S. 2615, a distance of 75 yards, and while operating his car at a speed of 27 or 28 miles an hour struck the truck, his own negligence was the proximate cause of his injury as a matter of law, and therefore he was not entitled to recover damages from the owner of the truck, even though the truck was parked unlawfully on the highway. In short, the driver could see, but would not slacken his speed or stop or take any precaution for his own safety, but plunged ahead apparently regardless of consequences.

The present case presents to a certain degree an opposite aspect of the law, as the evidence discloses that the plaintiff could not see more than 35 feet because of rain and mist which obscured his vision, and yet he swept on at a speed of 30 or 35 miles an hour.

The general rule under such circumstances is thus stated in Huddy on Automobiles (7th Ed.) 1924, § 396:

"It was negligence for the driver of the automobile to propel it in a dark place, in which he had to rely on the lights of his machine, at a rate faster than enabled him to stop or avoid any obstruction within the radius of his light, or within the distance to which his lights would disclose the existence of obstructions. *** If the lights on the automobile would disclose obstructions only 10 yards away, it was the duty of the driver to so regulate the speed of his machine that he could at all times avoid obstructions within that distance. If the lights on the machine would disclose objects further away than 10 yards, and the driver failed to see the object in time, then he would be conclusively presumed to be guilty of negligence, because it was his duty to see what could have been seen."

The rule thus expressed finds accurate and ample support in the authorities cited. For instance, the Michigan court in 1922, in Spencer v. Taylor, 219 Mich. 110, 188 N.W. 461, said:

"We think the court was right in holding plaintiff guilty of contributory negligence as a matter of law. It is well settled that it is negligence as a matter of law to drive an automobile along a public highway in the dark at such speed that it cannot be stopped within the distance that objects can be seen ahead of it."

The Ohio court in 1926, in case of Toledo Terminal R. R. Co. v. Hughes, 115 Ohio, 562, 154 N.E. 916, said:

"While it is

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