Young v. Baltimore & O. R. Co., 439

• Decision Date: 04 February 1966
• Docket Number: No. 439,439
• Citation: 266 N.C. 458,146 S.E.2d 441
• Court: North Carolina Supreme Court
• Parties: Wayne C. YOUNG v. BALTIMORE AND OHIO RAILROAD COMPANY, a corporation.

Page 441

146 S.E.2d 441

266 N.C. 458

Wayne C. YOUNG v. BALTIMORE AND OHIO RAILROAD COMPANY, a corporation.

No. 439.

Supreme Court of North Carolina.

Feb. 4, 1966.

William E. Hall, Mocksville, and Lafayette Williams, Yadkinville, for plaintiff.

Womble, Carlyle, Sandridge & Rice, by W. P. Sandridge, and H. Grady Barnhill, Winston-Salem, for defendant.

LAKE, Justice.

DEFENDANT'S APPEAL

Since the accident out of which this action arose occurred in Ohio, the law of Ohio governs the rights and duties of the parties. Jones v. Otis Elevator Co., 234 N.C. 512, 67 S.E.2d 492; Russ v. Atlantic Coast Line R. Co., 220 N.C. 715, 18 S.E.2d 130. The law of North Carolina governs the procedure to be followed in the trial of the action in the courts of this State.

In passing upon a motion for judgment of nonsuit the plaintiff's evidence must be taken to be true, must be interpreted in the light most favorable to the plaintiff and all reasonable inferences favorable to him must be drawn therefrom. Ammons v. Britt, 259 N.C. 740, 131 S.E.2d 349; Coleman v. Colonial Stores, Inc., 259 N.C. 241, 130 S.E.2d 338.

The Supreme Court of Ohio has held in Capelle v. Baltimore & O. R. Co., 136 Ohio St. 203, 24 N.E.2d 822, that a passenger in a motor vehicle which is driven into 'the side of a train standing or moving over a grade crossing cannot in the absence of special circumstances rendering the crossing peculiarly hazardous' recover from the railroad for injuries received. In Reed v. Erie R. Co., 134 Ohio St. 31, 15 N.E.2d 637, it was said that a railroad is not negligent by reason of its failure to light its train or to give a signal of its presence on the crossing because 'when the train has arrived and is in occupation of the crossing, it affords an effective danger signal to approaching travelers.' This is the general rule in other jurisdictions, 44 Am.Jur., Railroads, § 501, and is in accord with the law of this State. See: Morris v. Winston-Salem Southbound Railway Co., 265 N.C. 537, 144 S.E.2d 598.

Neither the plaintiff nor the defendant has cited to us any decision of the Ohio Court in the case in which an unlighted train, or portion thereof, was left standing upon a crossing in such a way that it covered only a part of the crossing and we know of no such decision in Ohio. As to such a situation the decisions from other states are in conflict. In Peagler v. Atlantic Coast Line R. Co., 234 S.C. 140, 107 S.E.2d 15, 84 A.L.R.2d 794, the Supreme Court of South Carolina affirmed a judgment in favor of a motorist who collided in the nighttime with an empty, black flat car standing on a crossing, street lights and the headlights of an oncoming car on the opposite side of the crossing giving the driver the illusion of an open crossing. To the same effect are the decisions in Hawkins v. Missouri Pac. R. Co., 217 Ark. 42, 228 S.E.2d 642; Ft. Worth & D. C. R. Co. v. Looney (Tex.Civ.App.) 241 S.W.2d 322; Godwin v. Camp Mfg. Co., 183 Va. 528, 32 S.E.2d 674. The contrary view is adopted in Allinson v. Missouri-Kansan-Texas R. Co., (Mo.App.) 347 S.W.2d 902; Lowden v. Bowles, 188 Okl. 35, 105 P.2d 1061.

In the present case the plaintiff's evidence, taken in the light most favorable to him, is sufficient to support a finding that there was no light on the locomotive, that no signal or other indication of its presence upon the crossing was given and that it was unattended by a train crew. It did not extend all the way over the crossing but projected only about two-thirds of the way from the plaintiff's right side of the crossing toward the center thereof. At the same time a stream of cars, whth headlights shining, approached from the other side of the crossing and some of them proceeded over the crossing toward the vehicle in which the plaintiff was riding, their portion of the crossing not being obstructed. Under these circumstances, the driver of the vehicle in which the plaintiff was riding did not observe the unlighted locomotive partially blocking his half of the crossing until he was some 60 feet from it.

The steadily moving stream of traffic meeting the plaintiff's vehicle created an illusion of an open crossing. This illusion was made possible by the act of the defendant in stopping its unlighted engine so that only a portion of the plaintiff's half of the crossing was blocked. We think these were 'special circumstances rendering the crossing peculiary hazardous,' within the rule announced by the Ohio Court in the Capelle case, supra. While there is no indication in the record as to how long the unlighted locomotive had remained in this position, we think it a reasonable inference that it arrived upon the crossing only a short time before the collision, when it was dark and automobiles with headlights burning were moving upon the highway toward the crossing. Thus the hazardous circumstances were, or should have been, known to the defendant. Under these conditions the rule of the Peagler case, supra, appears to us to be sound and we have no reason to doubt that it states the rule which would be applied to such a situation by the Ohio Court.

The evidence was, therefore, sufficient to support a finding that the defendant was negligent in leaving its unlighted engine upon the crossing at this time and in this position.

Even if the driver of the tractor-trailer be deemed negligent under these circumstances, his negligence can not be imputed to the plaintiff under the law of Ohio. Parton v. Weilnau, 169 Ohio St. 145, 158 N.E.2d 719. The defendant contends that West was so negligent and that his negligence intervened so as to insulate the negligence of the defendant, if any. A judgment of nonsuit on the ground of intervening negligence of a third person may be granted only when the evidence of the plaintiff permits no conclusion except that such third person was negligent and that his act or omission could not reasonably have been foreseen by the negligent defendant. Bryant v. Woodlief, 252 N.C. 488, 114 S.E.2d 241, 81 A.L.R.2d 939; Moore v. Town of Plymouth, 249 N.C. 423, 106 S.E.2d 695. Here, the evidence does not compel such a conclusion and this question was properly submitted by the court to the jury for consideration in connection with the first issue.

Similarly, a nonsuit may be granted on the ground of the plaintiff's own contributory negligence only when the evidence of the plaintiff admits of no other conclusion. Short v. Chapman, 261 N.C. 674, 136 S.E.2d 40; Pruett v. Inman, 252 N.C. 520, 114 S.E.2d 360. Here, the plaintiff was riding with a driver whom he knew to be well acquainted with this vicinity. In preparation for taking over the duties of driver, the plaintiff was in the process of putting on his botts and thus was leaning over and looking down. As soon as he saw the locomotive he cried out a warning. There is no evidence that he could have seen it sooner had he not been engaged in putting on his boots. This is not sufficient evidence of contributory negligence by the plaintiff to justify a judgment of nonsuit.

We, therefore, hold upon the defendant's appeal that there was no error in the denial of its motion for judgment as of nonsuit.

PLAINTIFF'S APPEAL

The plaintiff's assignments of error Nos. 1 and 2 relate to portions of the instructions of the court to the jury with reference to the first issue, including the doctrine of intervening negligence of the third party. Since the jury answered this issue in favor of the plaintiff, it is not necessary for us to consider these assignments, for it there was error in these portions of the charge the plaintiff has not been prejudiced thereby. As was said by Moore, J., in Fleming v. Drye, 253 N.C. 545, 549, 117 S.E.2d 416:

'Error in a charge on an issue is harmless if the jury answers the issue in favor of the appellant. Lookabill v. Regan, 247 N.C. 199, 202, 100 S.E.2d 521; Carolina Scenic...