Jeffries v. . Powell

WiNBORNE, J. In considering tbe challenge to tbe correctness of tbe ruling of tbe court below in sustaining motions of defendants, respectively, for judgments as of nonsuit at tbe close of' all tbe evidence, C. S., 567, “defendant’s evidence, unless favorable to the plaintiff, is not to be taken into consideration, except wben not in conflict witb tbe plaintiff’s evidence, it may be used to explain or make clear tbat wbicb bas been offered by tbe plaintiff.” Harrison v. R. R., 194 N. C., 656, 140 S. E., 598; Hare v. Weil, 213 N. C., 489, 196 S. E., 848; Sellars v. Bank, 214 N. C., 300, 199 S. E., 266; Crawford v. Crawford, 214 N. C., 619, 200 S. E., 378; Funeral Home v. Ins. Co., 216 N. C., 562, 5 S. E. (2d), 820; Godwin v. R. R., 220 N. C., 281, 17 S. E. (2d), 137. Wben tbe evidence in tbe present record, so considered, is taken in the light most favorable to each of tbe plaintiffs, we are of opinion tbat tbe court properly ruled tbat tbe evidence is insufficient to take either case to tbe jury. In so far as tbe Branch appeal is concerned, tbe ruling of tbe court finds support in a long line of decisions recently reviewed in Godwin v. R. R., supra; Miller v. R. R., 220 N. C., 562, 18 S. E. (2d), 232; McCrimmon v. Powell, ante, 216, 19 S. E. (2d), 880. Wben tested by tbe principles there applied, tbe evidence here plainly shows tbat plaintiff Branch, tbe driver of tbe automobile, was guilty of negligence wbicb proximately, at least, contributed to bis injury. He does not say tbat be could not have seen tbe train. He merely says tbat be did not. “This manifests negligence.” Tart v. R. R., 202 N. C., 52, 161 S. E., 720; Eller v. R. R., 200 N. C., 527, 157 S. E., 800; Bailey v. R. R., 196 N. C., 515, 146 S. E., 135; Harrison v. R. R., supra. “The law is not able to protect one who bas eyes and will not see — ears and will not bear,” Stacy, C. J., in Harrison v. R. R., supra. Also in Tart v. R. R., supra. Moreover, as related to tbe Jeffries case, there is nothing in tbe record from wbicb it may be inferred tbat, at tbe time and place of tbe accident, in a rural section, the train of defendants was being operated at an unlawful or negligent rate of speed. Hence, if it be conceded tbat defendants were required to give a signal of tbe approach of its train at tbe crossing in question, and failed to do so, it is clear from tbe evidence tbat tbe negligence of Branch was such as to insulate negligence of defendants, and that bis negligence was tbe sole proximate cause of tbe collision between bis automobile and tbe train of defendants in wbicb Jeffries lost bis life. This conclusion is in keeping witb well established *421 principle, and finds support in numerous cases in this State, among which are: Ballinger v. Thomas, 195 N. C., 517, 142 S. E., 761; Herman v. R. R., 197 N. C., 718, 150 S. E., 361; Hinnant v. R. R., 202 N. C., 493, 163 S. E., 555; George v. R. R., 207 N. C., 457, 177 S. E., 324; S. c., 210 N. C., 58, 185 S. E., 431; Smith v. Sink, 211 N. C., 725, 192 S. E., 108; Powers v. Sternberg, 213 N. C., 41, 6 S. E. (2d), 808; Murray v. R. R., 218 N. C., 392, 11 S. E. (2d), 326; Chinnis v. R. R., 219 N. C., 528, 14 S. E. (2d), 500; Reeves v. Staley, 220 N. C., 573, 18 S. E. (2d), 239; and Butner v. Spease, 217 N. C., 82, 6 S. E. (2d), 808. As stated by Devin, J., in the Chinnis case, supra, “Conceding that there was evidence of failure on the part of defendant to sound whistle or bell to give warning of the approach of the train to the crossing, it is clear that the active negligence of the driver of the automobile, subsequently operating, was the real efficient cause of the injury to plaintiff’s intestate . . . The negligence of the driver of the automobile was patent. It intervened between the failure of the defendant to give warning of the approach of the train to the crossing and the injury to plaintiff’s intestate, and it began to operate subsequent to any act of negligence on the part of defendant, and continued to operate to the instant of injury.” Here, moreover, the driver of the automobile ’“knew all about this crossing,” and, though there was nothing to obstruct his view, he drove his automobile, at speed of five to ten miles an hour, thirty or forty feet to and on the crossing in the face of a fast moving train without seeing it, which manifestly he could have seen in the exercise of due care. He was running his automobile into a known zone of danger, and he failed to see the obvious in broad daylight. Furthermore, at the rate of speed the automobile was being driven, it is a matter of common knowledge that Branch could have stopped it almost instantly. In such situation, even if it be conceded that the defendants were required to give a signal of this crossing and failed to do so, it is manifest that that would not have resulted in injury and death of Jeffries but for the subsequent gross negligence of the driver of the automobile, to which the collision must be attributed as the sole proximate cause. Butner v. Spease, supra; Reeves v. Staley, supra. The judgments below are Affirmed. Seawell, J., dissents as to Jeffries.