Williams v. Seaboard Air Line Ry. Co.

• Decision Date: 05 March 1924
• Docket Number: 96.
• Parties: WILLIAMS v. SEABOARD AIR LINE RY. CO.
• Court: North Carolina Supreme Court

121 S.E. 608

187 N.C. 348

WILLIAMS v. SEABOARD AIR LINE RY. CO.

No. 96.

Supreme Court of North Carolina

March 5, 1924

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

Action by Mary C. Williams against the Seaboard Air Line Railway Company. Judgment of nonsuit, and plaintiff appeals. New trial.

A person in charge of the operation of a motor vehicle, though neither the owner nor the person actually operating it, is liable for injuries caused by its negligent operation, since the person actually operating it will be deemed his servant regardless of who employed him.

The plaintiff was traveling north as a guest of W. A. Brundige in his automobile over the public highway between Franklinton and Henderson. They were both strangers and had never been over this road before. For several hundred yards south of the railroad crossing at which the injury occurred, the public road runs parallel to the railroad and about 40 feet from it.

The track of the defendant approaches the crossing from the south through a cut which was some 12 to 15 feet deep about 400 yards from the crossing, but gradually diminished to the point where there was an embankment thrown up by the defendant company between this track and the highway of 4 1/2 to 5 feet extending to the crossing. On the top of this embankment and on the bank of the cut, shrubs and bushes had been allowed to grow, thereby further obstructing from the view of a person on the highway a passing train.

The defendant's train, according to the evidence, was also traveling north and down grade at a high rate of speed estimated by some of the witnesses at 60 miles an hour. It was out of schedule, being about an hour and a half late. There was evidence that it was making very little noise and very little of it could be seen from the roadway because of the cut, embankment, and other obstructions, as the train approached the automobile almost directly from the rear. The automobile was traveling 18 to 20 miles an hour and turned abruptly to the left to cross the defendant's track and was struck by defendant's train. There was evidence tending to show that there was no bell rung or whistle blown or other notice of approaching danger.

The plaintiff, the woman passenger, 62 years old, was hurled about 75 feet, both arms and one shoulder being broken, one kneecap smashed, her skull fractured, her scalp being so badly cut that it fell over her eyes, and her nose cut and broken so that it dropped down over her mouth.

At the close of the plaintiff's testimony, the defendant's motion for judgment as of nonsuit was granted, and plaintiff appealed.

Perry & Kittrell, T. T. Hicks & Son, and Kittrell & Kittrell, all of Henderson, for appellant.

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

CLARK C.J.

Exception 1 is to the refusal of the judge to allow the plaintiff to answer the question: "Were you in a position that you could have heard the signal whistle or bell if it had been sounded?" The answer of the witness would have been "Yes."

Exception 5 is to the refusal of the court to permit the plaintiff to answer the question: "Were you engaged in anything that would have distracted your attention?" The answer would have been, "No." This evidence was sought to be elicited as tending to show that, if defendant's train had given proper warning signals as it approached the crossing, the plaintiff was not engaged in anything that would have so distracted her attention as to prevent her hearing the signals if any had been given.

In Goff v. Railroad, 179 N.C. 219, 102 S.E. 321, this court approved the principle laid down in Edwards v. R R., 129 N.C. 79, 39 S.E. 730:

"The testimony of a witness that he did not hear either the whistle or the bell, although in a position, where he might reasonably have heard either, is sufficient evidence for the consideration of the jury. It tends to prove that neither the whistle nor the bell was sounded; but whether it does prove it is for them alone to decide."

The question whether the proper signals were given should have been submitted to the jury, and the answer to the questions were competent to go to the jury as tending to show negligence on the part of the defendant. The train coming up from the rear at 60 miles an hour, the engineer should have seen the automobile traveling immediately alongside the track going in the same direction, and the engineer knew, which the occupants of the car did not know (for the testimony is that they had never been over the road before) that a short distance ahead the road, making a sharp turn to the left, would cross the track. It was the duty of the engineer by proper signals to have warned them of the rapid approach of the train going in the same direction, and the evidence (which was excluded) that the plaintiff was in a position to have heard the signal whistle or bell if it had been sounded or rung, and that she was not engaged in anything that would have distracted her attention, was competent for the jury to consider upon the allegation that no warning was given.

Exception 2 is that the judge permitted the plaintiff to be asked and to answer that she supposed the driver of the automobile would have taken precautions at the crossing if she had called his attention to it. The plaintiff, according to the evidence, was a guest of the driver of the car and had no interest in or control over it. The driver of the car is not a party to this action, and, even if negligence on his part had been shown, it could not be imputed to the plaintiff. The only pertinence of the question and answer was in attempting to fix the plaintiff with the responsibility of the action of the driver. What she supposed or imagined the driver would do under these circumstances was not admissible.

"It has been repeatedly held that for a person to be responsible for the operation of an automobile, he must be the owner of the car which is operated by some one under his authority and permission, or he must have control of the operation of the car." Tyree v. Tudor, 183 N.C. 346, 111 S.E. 717, which cites with approval Duval v. R. R., 134 N.C. 333, 46 S.E. 750, 65 L. R. A. 722, 101 Am. St. Rep. 830, where the court held that the negligence of the driver of a public conveyance is not imputable to a passenger therein unless the passenger has assumed such control and direction of the vehicle as to be practically in control thereof and the fact that the plaintiff was riding in a buggy driven by his father, as his guest, would make no difference as to legal liability.

Exception 6 presents the same question by permitting the defendant to ask the driver of the car and the answer that if Mrs. Williams, who was riding in his car, had called his attention to the fact of the railroad track he would have looked down the track in both directions.

Exception 7 is that the court permitted the defendant to ask W. A. Brundige, the owner and driver of the automobile, "If Mrs. Williams had requested you to stop the car upon her discovery that the train was coming, would you not have endeavored to stop it?" This was intended to impute to her responsibility for the conduct of the driver without showing that she was in control of the machine, and is also a hypothetical question, for it was not shown that she had discovered the approach of the train.

The driver of the automobile had testified that he did not remember the circumstances and he thinks that this was due in part to the shock which he received. The testimony is that Brundige was 61 years old and was thrown about 90 feet by the force of the collision. The effect of this upon his mental condition was competent as an explanation of his inability to remember accurately the details of the collision, and it was error to strike it out.

In addition to the above exceptions as to the admission or rejection of testimony, we think there was error in allowing the motion of the defendant for a nonsuit and for the refusal of the court to submit to the jury the facts in connection with the collision and the manner in which the plaintiff was injured.

There is no evidence tending to show that the plaintiff, who was a mere passenger or guest of Brundige, saw the car being driven into the zone of danger. Besides the question of contributory negligence upon the facts of this case does not arise upon this nonsuit, for if the evidence, taken in the light most favorable for the plaintiff, was sufficient to be submitted to the jury upon the issue, the evidence, if there had been any, of contributory negligence on the part of the plaintiff, cannot be considered.

Tyree v. Tudor, 183 N. C., at page 346, 111 S.E. 714, 717, quotes Hunt v. R. R., 170 N.C. 442, 87 S.E. 210, where the court said:

"It is held by the greater weight of authority that negligence on the part of the driver of an automobile will not, as a rule, be imputed to another occupant or passenger unless such other occupant is the owner or has some kind of control over the driver. This is undoubtedly the view prevailing in this state. See the learned opinion on this subject by Douglas, J., in Duval v. R. R., 134 N.C. 331, citing Crampton v. Ivie, 126 N.C. 894; both of these discussions being approved in the more recent case of Baker v. R. R., 144 N.C. 37."

And further said that this had been approved in the then very recent case of Pusey v. R. R., 181 N.C. 142, 106 S.E. 452, and added the following:

"It has been repeatedly held that for a person to be responsible for the operation of an automobile, he must be the owner of the car which is operated by some one under his authority and permission, or he must have control of the operation of the car, neither of which functions could be attributed to Ruth Tyree, who was a

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