Preddy v. . Britt

Gl.abksoN, J. At the close of plaintiff’s evidence and at the close of all the evidence the defendants in the court below made motions for judgment as in case of nonsuit. C. S., 567. The court below overruled these motions and in this we can see no error. The evidence which makes for plaintiff’s claim, or tends to support his cause of action, is to be taken in its most favorable light for the plaintiff, and he is entitled to the benefit of every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom. We think the plaintiff’s evidence fully sustains his contentions and allegations in his complaint. *723 Plaintiff’s evidence was to the effect that the crossing was a public highway and was dangerous. That the view of the railroad train, as plaintiff’s intestate drove on the track, was obscured by a house and an 18-foot cut, high enough to cover an engine coming out of it. To see an approaching train coming from the direction in which it was, an automobile must be about 16 feet from the track, about the length of an automobile, practically on the track. Henry Cash testified: “You can’t see down the railroad until you get mighty near on it. There’s a fill down there and you have to get almost on the track before you can see down it.” The freight train approaching the highway was running about 60 miles an hour and blew no whistle and rang no bell. The plaintiff’s intestate was driving about 12 or 15 miles an hour. The collision was at night, 8 :30 o’clock p. m. The facts in this case are stronger for plaintiff than those in Moseley v. R. R., 197 N. C., 628. We think the court below was fully warranted in submitting the case to the jury under the Moseley and other cases in this jurisdiction. The Moseley case, supra, in many respects, may be said to be on “all-fours” with the present case. Butner v. R. R., 199 N. C., 695; Moore v. R. R., 201 N. C., 26. A similar case is Lincoln v. R. R., 207 N. C., 787, written by Siacy, G. J., for the Court. The facts were: “Plaintiff’s intestate was killed 10 January, 1933, at a railroad crossing near Washington, N. C., in a collision between the automobile or truck in which he was riding and a train operated by the defendant. It appears from the plaintiff’s evidence that the train approached the crossing at a speed of 45 or 50 miles an hour without signals or warning of any kind, and that plaintiff’s intestate’s view was obstructed so that he could not see the oncoming train until he was within 4 or 5 feet of the track. Other witnesses said he could have seen the train 20 or 25 feet from the track. He drove upon the track and was hit by the train. . . . (P. 789.) Applying these principles to the facts of the instant case, it would seem that the motion to nonsuit should have been overruled. There was error in sustaining it. Speaking to a similar situation in Harris v. R. R., 199 N. C., 798, 156 S. E., 102, it was said: ‘The law in this State does not impose upon the driver of a motor vehicle, on his approach to a public crossing, the duty, under all circumstances, to stop his vehicle before driving on the crossing. Whether under all the circumstances, as the evidence tends to show, and as the jury may find from the evidence, the failure of the driver to stop, as well as to look and listen for an approaching train at a railroad crossing, was negligence on his part is ordinarily a question involving matters of fact as well as of law, and must be determined by the jury under proper instructions from the *724 court. This principle has statutory recognition in this State.’ See, also, Keller v. R. R. and Davis v. R. r., 205 N. C., 269, 171 S. E., 73, and cases there cited.” Harper v. R. R., 211 N. C., 398 (405-6). On applying the law applicable to the facts the court below was so thorough and accurate that defendants took no exceptions to same. The defendants set up a release. Plaintiff answered alleging fraud. The issue submitted to the jury was: “Was the execution of the release by the plaintiff procured by the fraud of the defendants as alleged in plaintiff’s reply? Ans.: ‘Yes.’” The evidence on this issue was plenary to have been submitted to the jury. The court below, on this aspect, to which there was no exceptions, charged the jury: “If the jury should find from the evidence, and by its greater weight, that plaintiff’s intestate was killed through the negligence of the defendants, as alleged in the complaint, and should further find by clear, strong, and convincing evidence that a reasonable compensation for plaintiff’s intestate’s death was worth a sum considerably in excess of the amount which the defendants paid to plaintiff administrator for said release, and that the amount or sum of money so paid by the defendants to the plaintiff administrator was so grossly inadequate as to what would be reasonable compensation to the plaintiff administrator for the death of his intestate as would cause a reasonable, fair-minded person to say that the sum so paid plaintiff administrator was so small in comparison to the amount the plaintiff administrator was actually entitled to receive that it amounted to practically nothing, then the jury should consider such facts in determining whether the release was obtained by the claim agent, knowing the plaintiff administrator’s financial necessities and distress, by fraud, and if they should reach such conclusion from such fact alone, then the jury should answer the first issue ‘Yes.’ ” The court had theretofore charged what constituted fraud. Butler v. Fertilizer Works, 195 N. C., 409. At the time judgment was tendered and before it was signed by the court the defendants moved the court that the sum of $220.80, being the amount of consideration recited in the release and which was paid plaintiff on 3 May, 1934, be deducted from the amount awarded by the jury in its answer to the issue of damages. The court declined to deduct the said sum, with interest, or any part of either from the amount awarded by the jury as damages. The defendant excepted and assigned error. We think the court below was in error. The release was set aside, and although this money went to bury the plaintiff’s intestate and for funeral expenses, yet in good morals and law it should be deducted from the recovery. In Holland v. Utilities Co., 208 N. C., 289 (292), we find: “Both reason and justice' decree that there should be collected no double com *725 pensation, or even over-compensation, for any injury, however many sources of compensation there may be.” Smith v. Thompson, 210 N. C., 672 (677). For the reason given the judgment of the court below is modified. In the trial we find no prejudicial or reversible error. Modified and affirmed. Devin, Baenhill, and Winboene, JJ., dissent.