Hall v. HIGH POINT, THOMASVILLE & DENTON RAILROAD CO.

ERWIN, Judge. Plaintiff contends the trial court erred in excluding evidence of an experiment conducted by plaintiff’s witness relating to the visibility of a train at the crossing at night. We disagree. *298 Whether or not evidence of experiments is admissible is, under the circumstances of each case, a preliminary question for the determination of the court in the exercise of its discretion, which will not be interfered with by an appellate tribunal unless an abuse is made clearly to appear. Service Co. v. Sales Co., 259 N.C. 400, 131 S.E. 2d 9 (1963); Mintz v. R.R., 236 N.C. 109, 72 S.E. 2d 38 (1952). Normally, however, to be admissible, an experiment must satisfy two requirements: (1) it must be under conditions substantially similar to those prevailing at the time of the occurrence involved in the action, and (2) the result of the experiment must have a legitimate tendency to prove or disprove an issue arising out of such occurrence. Service Co. v. Sales Co., supra, and Mintz v. R.R., supra. The trial court found that plaintiff had failed to meet the first requirement enumerated above. Plaintiff’s witness would have testified that some two weeks later between midnight and 1:15 a.m., he returned to the scene of the accident. He approached the crossing from a southerly direction on his motorcycle, a Honda 350, which was almost identical and the same size as plaintiff’s Triumph 500 except for the size of the engine, and the lights on the two motorcycles shone the same. In approaching the crossing on Liberty Drive, the witness started from the intersection at Trinity Street. A boxcar was across the street as he approached the crossing, but he was unable to see the boxcar until he was “[a]s far from here to the end of the wall there.” It is not clear to us as to the distance to which the witness was testifying. However, it is clear to us that the trial court did not err in excluding the results of the witness’ experiments, because there is no evidence in the record that the experiments were conducted under the same atmospheric conditions, i.e., plaintiff testified that the weather was clear and dry and that there were no obstructions, while the proffered testimony of plaintiff’s witness only reveals that the night was dark. Also, there is no evidence as to the speed which the witness was traveling when he conducted the experiment. Accordingly, this assignment of error is overruled. As his second assignment of error, plaintiff contends the trial court erred in excluding the statement of the railroad’s brakeman that he ran as hard as he could run, but did not get there in time to stop him. *299 The record reveals that the brakeman’s statement was made several minutes after the accident, was not part of the res gestae, and was therefore properly excluded, see Lee v. R.R., 237 N.C. 357, 75 S.E. 2d 143 (1953); Bailey v. R.R. and King v. R.R., 223 N.C. 244, 25 S.E. 2d 833 (1943); Batchelor v. R.R., 196 N.C. 84, 144 S.E. 542 (1928), nor was the statement admissible as a declaration against the interest of defendant. See Staley v. Park, 202 N.C. 155, 162 S.E. 202 (1932). Finally, plaintiff contends that the trial court erred in entering a directed verdict against him. We disagree. Plaintiff’s own evidence, when viewed in the light most favorable to him, reveals that on the night of the accident, the weather was clear and dry. There were no obstructions to block his view. He was familiar with the location of the railroad crossing, having crossed it at least 100 times. His headlights revealed an object at least 250 feet ahead of him, but he did not see the boxcar until he was 30 to 35 feet from it. Regardless whether or not plaintiff actually saw the boxcar, the law imposed upon him the duty to exercise such care so that he should have seen it. Lee v. R.R., 212 N.C. 340, 193 S.E. 395 (1937). The facts in Lee, supra, are practically on all fours with those in the present case. In Lee, supra, the plaintiff was driving eastward on a state highway on the west side of the city of Goldsboro when he collided with a flatcar standing across the highway. Plaintiff did not see the flatcar because of the shadows cast by trees and small houses. As here, defendant had failed to provide lights or signals of the presence of the flatcar, and plaintiff could not and did not see the flatcar in time to stop his automobile and avoid the collision. Nevertheless, our Supreme Court stated: “[I]n the case at bar there was no rain, but there were ‘other conditions on the highway,’ namely, the darkened condition of the highway caused by the shadows from the trees and houses on the defendant’s right of way [sic]. If this darkened condition rendered it impossible for the plaintiff to see a flat car [sic] across the highway in time to enable him to stop his automobile at the rate of speed at which he was operating it soon enough to avoid a collision, there was a failure to exercise due care on the part of the plaintiff in operating his *300 automobile at such a rate of speed. If the plaintiff saw, or by the exercise of due care could have seen, the flat car [sic] in time to stop his automobile soon enough to avoid the collision and failed to do so, there was likewise a failure to exercise due care on his part. The plaintiff, according to his own testimony, was guilty of contributory negligence either in. failing to drive within the radius of his lights, that is at a speed at which he could stop within the distance to which his lights would disclose the existence of obstructions, or in failing to see the flat car [sic] in time to avoid the collision. It makes no difference which horn of the dilemma the plaintiff takes, his cause of action is defeated by his own negligence.” 212 N.C. at 342, 193 S.E. at 396. Since the Supreme Court’s decision in Lee, supra, it has decided the cases of Beasley v. Williams, 260 N.C. 561, 133 S.E. 2d 227 (1963), and Jernigan v. R.R. Co., 275 N.C. 277, 167 S.E. 2d 269 (1969). The Supreme Court held in Beasley, supra, that the failure of a driver to stop a motor vehicle within the radius of the lights of the vehicle or within the range of his vision is no longer negligence per se or contributory negligence per se. In Jemigan, supra, the Supreme Court held that entry of a motion of nonsuit against the plaintiff on the grounds of contributory negligence was improper where the plaintiff motorist collided in the nighttime with a train engine standing on a railroad crossing, the tracks were on a downgrade, and a trestle obstructed plaintiffs view. Even so, the court did not alleviate the duty of an operator of a motor vehicle or motorcycle from a continuing duty to look and listen before entering upon a railroad crossing. See Jemigan, supra. Likewise, plaintiff was under a duty to see what could have been seen. See Lee v. R.R., supra. Plaintiffs evidence shows that he should have seen the boxcar in time to avoid the collision, that his failure to do so was a proximate cause of his injury, and that he was guilty of contributory negligence as a matter of law. To the extent that Lee v. R.R., supra, iterates this alternative ground for entering a directed verdict, formerly judgment of nonsuit, it is still the law. *301 The judgment entered below is Affirmed. Judges VAUGHN and Hill concur.