Winfree v. Seabd. Air Line Ry. Co

• Decision Date: 22 October 1930
• Docket Number: No. 257.,257.
• Citation: 155 S.E. 259
• Court: North Carolina Supreme Court
• Parties: WINFREE. v. SEABOARD AIR LINE RY. CO.

155 S.E. 259

(199 N.C. 690)

WINFREE.

v.SEABOARD AIR LINE RY. CO.

No. 257.

Supreme Court of North Carolina.

Oct. 22, 1930.

[Ed. Note.—For other definitions of "Negligence, " see Words and Phrases.]

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

Action by G. M. Winfree, administrator of W. C. Winfree, deceased, against the Sea board Air Line Railway Company. From a judgment of nonsuit, plaintiff appeals.

Affirmed.

The plaintiff brought suit to recover damages for the death of his intestate alleged to have been caused by the negligence of the defendant. At the close of the plaintiff's evidence, the action was dismissed as in case of nonsuit, and the plaintiff appealed. C. S. § 567.

Clyde A. Douglass and Thos. W. Ruffin, both of Raleigh, for appellant.

Murray Allen, of Raleigh, for appellee.

ADAMS, J.

The death of the plaintiff's intestate occurred a few minutes after 10 o'clock at night on August 15, 1929. He was employed by the defendant as extra watchman at Johnson street crossing in the city of Raleigh and was charged with the duty of preventing persons and vehicles from going upon the defendant's tracks when trains were approaching. His hours of service were between 2 in the afternoon and 10 at night. He lived on Glenwood avenue, and at the time of his death was on his way home.

At and near the place of the accident the defendant has three parallel tracks: On the east is the north-bound track; west of it, the south-bound; and west of the south-bound track is another known as the cinder track. They run north and south and are intersected by several streets in the vicinity, which extend east and west.

A clerk in the defendant's storeroom at Johnson street saw the deceased leave his station on the north side of this street and walk toward the south on the railroad yard. In a few minutes the defendant's north-bound train ran in on the south-bound track; "the bell rang, the whistle blew, and the train stopped in about two and a half car lengths." The body of the deceased was found between the south-bound track and the cinder track, 250 feet north of the North street crossing and 250 or 300 feet from the crossing at Johnson street.

For several years the defendant's employees had been accustomed to use the railway tracks and the space between the tracks in going to and from their work. Between the nearest rails of the two tracks the distance is about 6 feet, and between the ends of the cross-ties about 4. Several witnesses testified that a person can walk between the tracks in no danger of being struck by a passing train; but there is evidence that it would be impossible for one to stand between the tracks without being struck if a train passed by. It was testified that the deceased could have reached his home by going on Johnson street without walking on the road-bed; also that Johnson street is not in good condition.

The north-bound train customarily used the east or north-bound track, but on this occasion it ran on the west or south-bound track because the construction of an underpass at Peace street made its use necessary. A person standing on either track near the place of the accident and facing the glare of the headlight on an engine coming from the south could not definitely determine the track the train was on. But "there was room to get entirely off the tracks on the south side."

It was in evidence that the speed of the train was 35 or 40 miles an hour; that a signal was given at Jones street four or five blocks away; that the noise was heard at this distance; that the train was known to be coming when 1, 680 feet distant; and that the bell was ringing when the train ran into the yard. The headlight was burning. A witness testified that from the place where the body of the deceased was found one could see the headlight 500 feet away, and that there were several contiguous places of safety.

Actionable negligence involves three essential elements: The existence of a duty on the part of the defendant to protect the plaintiff from injury; failure of the defendant to perform this duty; and injury to the plaintiff proximately resulting from such failure.

Granting that there is evidence of negligence in the operation of the train in breach of the city ordinance, or in disregard of the duty...