Bumgarner Ex Rel. Bumgarner v. Southern Railway Co.

*378 Higgins, J. In considering the appeal of the Southern Railway Company we may dismiss as without significance the allegation that neither warning signs nor signals were placed at the crossing where the accident occurred. The driver of the automobile knew the crossing and stopped for it. Therefore, he had all the notice warning devices could have given him. Evidence is lacking to support the plaintiff’s allegation that the speed of the train was in violation of law — either State statute or city ordinance, or that after seeing the car on the track the train crew could have stopped the train in time to avoid the injury. All the evidence is to the effect that the headlights on the engine were properly functioning. Left for consideration is the allegation that the defendant’s train appeared “suddenly without any warning on the part of the defendant Railroad Company, its agents, or servants, either by blowing of a whistle or the ringing of a bell, or in any manner making known its approach, . . . and negligently approached the crossing ... at a great rate of speed, ... or without slowing down . . .” The evidence is plenary that the driver heard the whistle before the train came into view. At the time he heard the whistle, and while he was about to enter upon the southbound track, he became excited, slammed on his brakes, choked down and stalled his engine while the automobile was on the track, or so close to it that the train struck it. After the car stopped, three of the occupants, including the plaintiff, reached a place of safety. The plaintiff, however, saw Phyllis Metcalf still in the car, “frozen with fright.” Immediately he went to her rescue, succeeded in taking her from the car and pushing her to a place of safety. The plaintiff, having escaped from the car and from the moving train, however, received his injury as the train hurled the car against him. The evidence did not disclose how far the train moved after striking the car. The defendant’s evidence (not in conflict with plaintiff’s) indicated the engineer applied his brakes as soon as he saw the car stopped on or near the tracks, and that the train moved about 35 car lengths, approximately 1,600 feet, before it stopped. The evidence is insufficient to show negligence on the part of the Railway Company, Faircloth v. R. R., ante, 190, and cases cited; and likewise to raise the question of the railway’s last clear chance to avoid the accident after ascertaining the occupants of the car were in a place of danger. Freight Lines v. Burlington Mills, 246 N.C. 143, 97 S.E. 2d 850; Redmon v. R. R., 195 N.C. 764, 143 S.E. 829. This case is governed by the doctrine approved by this Court in the following cases: Faircloth v. R. R., supra; Jones v. R. R., 235 N. C. 640, 70 S.E. 2d 669; Jeffries v. Powell, Receiver, 221 *379 N.C. 415, 20 S.E. 2d 561; and cases cited. The evidence was insufficient to take the case to the jury against the corporate defendant. Its motion for judgment of nonsuit should have been allowed. As to the individual defendant, the jury found that John T. Yates was her agent, and acting in the scope of his agency at the time of the accident. John Yates testified: “My mother actually owned the automobile ... I had been away approximately a year and a half . . . During that time I considered my permanent address with my mother. ... It was understood I would drive the car when I came home or any time I came in contact with it . . . On the evening in question I had my mother’s permission and consent to drive the automobile.” The evidence of ownership and agency, and that the car was maintained for a family purnose was sufficient to require the court to submit the issue to the jurv and to warrant the jury in answering it in favor of the plaintiff. Elliott v. Killian, 242 N.C. 471, 87 S.E. 2d 903; Goode v. Barton, 238 N.C. 492, 78 S.E. 2d 398; Ewing v. Thompson, 233 N.C. 564, 65 S.E. 2d 17; Matthews v. Cheatham, 210 N.C. 592, 188 S.E. 87. The evidence disclosed that John T. Yates was familiar with the crossing where the accident occurred. He stopped an undisclosed distance from the crossing and looked both to the north and to the south. Seeing nothing, he thereafter looked only straight ahead until his vehicle was on or near the track. The whistle sounded, he became excited, and, instead of continuing or speeding up, he applied his brakes and stalled his car in the path of the train. Even so, all except Phyllis Metcalf reached a place of safety. The defendant’s agent drove the automobile into a zone of danger, became excited when the danger materialized, and stopped when time remained to have continued to a place of safety. The evidence was sufficient to go to the jury. Irby v. R. R., 246 N.C. 384, 98 S.E. 2d 349; Beaman v. R. R., 238 N.C. 418, 78 S.E. 2d 182; Dowdy v. R. R., 237 N.C. 519, 75 S.E. 2d 639; Parker v. R. R., 232 N.C. 472, 61 S.E. 2d 370; Coleman v. R. R., 153 N.C. 322, 69 S.E. 251. Remaining to be disposed of is the individual defendant’s allegation that the plaintiff was guilty of contributory negligence. By leaving a place of safety, and by entering a place of known danger for the purpose of rescuing Phyllis Metcalf, was the plaintiff guilty of contributory negligence as a matter of law, or does the evidence present the question as one for the jury? The impulse to give assistance to his companion who was helpless in a place of great danger necessarily was strong in the plaintiff. Her rescue was complete. He missed escape by a very narrow margin. In all probability her life was saved at the cost *380 of his leg. Would it be fair to say that his injury resulted from his negligence and that no other reasonable inference can be drawn from the evidence in the case? “. . . it is well established that when the life of a human being is suddenly subjected to imminent peril through another’s negligence, either a comrade or a bystander may attempt to save it, and his conduct is not subjected to the same exacting rules which obtain under ordinary conditions . . .” Norris v. R. R., 152 N.C. 505, 67 S.E. 1017; Pegram v. R. R., 139 N.C. 303, 51 S.E. 975. “. . . the rule is well settled that one who sees a person in imminent and serious peril through the negligence of another cannot be charged with contributory negligence, as a matter of law, in risking his own life, or serious injury, in attempting to effect a rescue, provided the attempt is not recklessly or rashly made.” Alford v. Washington, 244 N.C. 132, 92 S.E. 2d 788. Evidence the driver’s negligence exposed Phyllis Metcalf to the danger from which the plaintiff rescued her to his own injury was sufficient to go to the jury and to sustain the verdict. Contributory negligence on the part of the plaintiff does not appear as a matter of law. The jury resolved the question in his favor as an issue of fact. On the appeal of the corporate defendant, the judgment is Reversed. On the appeal of the individual defendant, there is No error.