Jarrett v. SOUTHERN RAILWAY COMPANY

HiggiNS, J. The question presented is the sufficiency of the evidence to withstand defendant’s motion for nonsuit. On this question the rules require us to accept the plaintiff’s evidence as true. We must give him the benefit of all reasonable inferences that may be drawn from it, resolving all conflicts in his favor. Heuay v. Construction Co., 254 N.C. 252; Drum v. Bisaner, 252 N.C. 305, 113 S.E. 2d 560; Lake v. Express Co., 249 N.C. 410, 106 S.E. 2d 518; Mitchell v. Melts, 220 N.C. 793, 18 S.E. 2d 406. The record does not disclose whether the nonsuit was entered because the plaintiff failed to offer evidence of defendant’s negligence or because plaintiff’s own evidence established his contributory negligence as a matter of law. Smith v. Rawlins, 253 N.C. 67, 116 S.E. 2d 184; Clontz v. Krimminger, 253 N.C. 252, 116 S.E. 2d 804; Leonard v. Garner, 253 N.C. 278, 116 S.E. 2d 731; Bundy v. Powell, 229 N.C. 707, 51 S.E. 2d 307. Each case involving a highway-railway crossing accident must be decided upon its facts. Nevertheless, certain rules have been recognized by this Court as tending to assist in fixing responsibility. Here we are dealing with a hazardous crossing, known to be such by both parties. Two thousand vehicles traverse four railroad tracks each day. The degree of vigilance required of both parties is in proportion to the known danger. One of the leading eases is Johnson v. R.R., 163 N.C. 431, 79 S.E. 690. Others are Sherrill v. R.R., 140 N.C. 252, 52 S.E. 940; Coleman v. R.R., 153 N.C. 322, 69 S.E. 251; Moseley v. R.R., 197 N.C. 628, 150 S.E. 184; Lincoln v. R.R., 207 N.C. 787, 178 S.E. 601; Cole v. Koonce, 214 N.C. 188, 198 S.E. 637; White v. R.R., 216 N.C. 79, 3 S.E. 2d 310; Godwin v. R.R., 220 N.C. 281, 17 S.E. 2d 137; Beaman v. R.R., 238 N.C. 418, 78 S.E. 2d 182; Irby v. R.R., 246 N.C. 384, 98 S.E. 2d 349; Faircloth v. R.R., 247 N.C. 190, 100 S.E. 2d 328; High v. R.R., 248 N.C. 414, 103 SE. 2d 498; Arvin v. McClintock, 253 N.C. 679, 118 S.E. 2d 129. This is a close case. We have encountered difficulty in finding for it a comfortable resting place among our decisions. However, disregarding all evidence favorable to the defendant, we conclude the plaintiff has offered evidence (only a part of which is quoted) from which defendant’s negligence may be inferred. Likewise, we conclude the *496 evidence in the light most favorable to the plaintiff does not show his contributory negligence as a matter of law. Construing the evidence in the light most favorable to him, as we are required to do, the plaintiff stopped approximately 12 feet from the track upon which the defendant ordinarily operated its trains. The plaintiff could see not more than 80 or 100 feet because of weeds, hedges, grass, etc. As he released his brake and attempted to cross the main track the train was neither in sight nor in hearing. Before he could complete the crossing, however, the train, without whistle or bell, and probably coasting, came in sight at an estimated speed of 25 to 35 miles per hour and struck the rear of his vehicle before he had time to clear the track. A city ordinance permitted speed not in excess of 15 miles per hour. Giving due heed to the reciprocal duties which the parties owed to each other as outlined in Johnson v. R.R., supra., and subsequent cases, we conclude the pleadings and the evidence presented issues of fact both as to negligence and contributory negligence. Whether one party, or both, or neither, failed to exercise due care are issues to be resolved by the jury. New trial.