Moseley v. Atlantic Coast Line Railroad

Clarkson, J. The first main assignment of error by the defendant was to the refusal of the court below at the close of plaintiff’s evidence, and at the close of all the evidence, to dismiss the action or for judgment as in case of nonsuit. C. S., 567. This assignment of error cannot be sustained. As often repeated: “It is the settled rule of practice and the accepted position in this jurisdiction that, on a motion to nonsuit, the evidence which makes for the plaintiff’s claim, and which tends to support her cause of action, whether offered by the plaintiff or elicited from the defendant’s witnesses, will be taken and considered in its most favorable light for the plaintiff, and she is ‘entitled to the benefit of every reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom.’ ” Goss v. Williams, 196 N. C., at p. 216. The evidence was conflicting in many respects, but we must consider it in the light most favorable to the plaintiff, taking into consideration all the evidence. In the town of Smithfield plaintiff’s intestate and his negro helper crossed the railroad tracks on Johnson Street going east in a truck. After delivering from the truck bottled drinks at the first store on the south side of Johnson Street, they started to recross. They both entered the cab, plaintiff’s intestate at the wheel, the negro boy by his side. The cab was then facing east. The driver backed the truck into a lane or alley between the store and the first railroad track to turn so as to cross the railroad. The driver’s seat was 6% feet from the front of the truck. He had to cross the first track and the main northbound track (second) going west. The crossing on Johnson Street over the second track was only 10 feet wide — -that was the width of Johnson Street at that point — at least that was the length of the timber placed on each side of the T-rails so that vehicles could climb over. He had to adjust the heavy truck to the narrow passage provided over the T-rails. The train was approaching this crossing on the main northbound track (second) running 35 to 40 miles an hour, without any signals being heard, either whistle or bell for the crossing. The crossing was in a *634 thickly settled portion of a town, much traveled, with no device of any kind or watchman to give warning of the approach of trains. The train was coming north around a curve, the vision of plaintiff’s intestate was obstructed by a tool and supply house of defendant company. Plaintiff’s intestate was looking to the left in the direction that the train was coming. It was impossible for him to see the oncoming train on account of the obstructions. He was a good driver, the machine in perfect mechanical condition, running 10 miles an hour in low gear. As he proceeded and passed where he could get a, vision of the oncoming train from where he was sitting, it was only 23 feet from the main track on which the train was coming, and from the cab where he was sitting to the front of the machine was 6% feet. He had only 16% feet for the machine to travel before reaching track two, which the oncoming train was on, and could only see, by the testimony of one witness, about 84 yards, and another 147 yards, down the track. Thus, from the evidence, he got in this perilous danger zone. The machine did not get over the second track; the rails between the tracks were 4.9 feet. Plaintiff’s intestate’s body was carried about 140 feet and the truck carried about 300 feet, and both thrown off on the east side of the main track. As a matter of law, we think there was sufficient evidence to be submitted to the jury on the question of negligence and contributory negligence, and the court below correct in refusing to nonsuit plaintiff. In Russell v. R. R., 118 N. C., at p. 1108, it is said: “It is the duty of an engineer in charge of a moving train to give some signal of its approach to the crossing of a public highway over a railway track or to a crossing which the public have been habitually permitted to use; and where he fails to do so, the railway company is deemed negligent and answerable for any injury due to such omission of duty.” Perry v. R. R., 180 N. C., 290; Rigsbee v. R. R., 190 N. C., 231; Farwood v. R. R., 192 N. C., 27; Franklin v. R. R., 192 N. C., 717; Finch v. R. R., 195 N. C., 190. In Franklin v. R. R., supra, at p. 719, it is said: “The plaintiff testified that he heard no signal prior to or at the time he stepped upon the crossing. This is some evidence that no signal was given. . . . The law makes it the duty of the person using a, crossing of a railroad track to make diligent use of his senses in order to discover whether there is danger of injury or collision.” “Failure to stop before crossing a railroad track cannot be declared to be contributory negligence as matter of law, but that it should be considered by the jury in connection with the surrounding circumstances in determining whether the party was exercising the care of one of ordinary prudence.” Perry v. R. R., supra, at p. 297. *635 In Shepard v. R. R., 166 N. C., at p. 545, it is said: “It is also established by the weight of authority that it is not always imperative on a traveler to come to a complete stop before entering on a railroad crossing; but ‘whether he must stop, in addition to looking and listening, -depends upon the facts and circumstances to each particular case, and so is usually a question for the jury.’ Barber v. R. R., 193 N. C., at p. 694-5.” The law is thus stated in Williams v. R. R., 187 N. C., at p. 353: “Goff v. R. R., 179 N. C., 216, as already stated, cites the rule laid down in Edwards v. R. R. (129 N. C., 79), that the failure to hear signals is sufficient to carry the case to the jury, and it was further held: ‘If his (plaintiff’s) view is obstructed, or his hearing the approaching train is prevented, and especially if this is done by the fault of the defendant, and the company’s servants fail to warn him of its approach,, and, induced by this failure of duty, which has lulled him into security, he attempts to cross the track and is injured, having used his faculties as best he could, under the circumstances, to ascertain if it was dangerous ahead, negligence will not be imputed to him, but to the company, failure to warn him being regarded as the proximate cause of any injury received,’ citing Mesic v. R. R., 120 N. C., 490; Osborne v. R. R., 160 N. C., 309.” “It is conceded by all the authorities that the standard by which to determine whether a person has been guilty of negligence is the conduct of the prudent or careful or diligent man.” Bigelow, Torts, 261. “Contributory negligence is the negligent act of a plaintiff which, concurring and cooperating with the negligent act of the defendant, is the proximate cause of the injury. The same rule of due care which the defendant is bound to observe applies equally, to the plaintiff. There is xeally no distinction between negligence of the plaintiff and negligence of the defendant, except the plaintiff’s negligence is called contributory negligence. The law further says, . . . that contributory negligence may consist of some act of omission or act of commission. It is the lack of due diligence or the lack of due care in doing the wrong thing at the time and place, or in doing nothing when something should have been done. That is to say, did the plaintiff fail to exercise due care which an ordinarily prudent man would have exercised under similar circumstances, and was said failure so to do the proximate cause of his injury?” Inge v. R. R., 192 N. C., at p. 531. The above charge on contributory negligence held correct. Gertiorari denied. 273 U. S., 753. It goes without saying, as it is so well settled, that the proximate cause of an injury is for the jury. A serious and troublesome question is continually arising as to how far a court will declare certain conduct of a defendant negligence and certain conduct of a plaintiff contributory negli *636 gence and take away the. question of negligence and contributory negligence from the jury. Tbe right of trial by jury should be carefully preserved, and if there is any evidence, more than a scintilla, it is a matter for the jury and not the court. “Plaintiff, while attempting to cross the tracks of defendant in the city of Sioux Falls collided with a train of defendant and the automobile in which be was riding damaged. Plaintiff claims the accident was caused by the negligence of defendant’s employees by reason of their failure to- blow the whistle or ring the bell of the engine when approaching the crossing. Defendant pleads contributory negligence on the part of plaintiff in not keeping a proper lookout for the train as be approached the crossing and in not using due care under all the circumstances: Held, that when it is considered that the space between the first view and the rail was only twenty-five feet, and the space within which a safe stop could be made was much less owing to the projection of the automobile ahead of the driver’s seat and of the cars of the train over the rail, and after allowing time to look both ways, operate the brakes and come to a standstill the court cannot say respondent was negligent in failing to stop far enough from the track to escape injury. It is one’s duty to use due care, but what acts constitute due care under all the circumstances cannot be prescribed in advance, and when not so prescribed, whether or not due care was - exercised becomes a question of fact for a jury and not one of law for the court.” Morrisey v. Chicago, Milwaukee & St. Paul Ry. Co., So. Dakota, 226 Northwestern Reporter, p. 731. In the case of Harrison v. R. R., 194 N. C., 656, the plaintiff’s witness testified, “there is nothing in the world to keep a man from seeiug the train approaching from the south if be would look before be got on the track.” Harrison’s intestate, Lomax, bad stopped bis machine waiting for the freight train going southwardly to pass over the crossing. “If Mr. Lomax bad looked from where be was sitting in bis automobile, I would say, in my judgment, be could have seen the train, which struck him, approaching for a distance of 75 or 100 yards.” In the case at bar, plaintiff’s intestate was looking to the left — -the direction the train was approaching. His view bad theretofore been obstructed by defendant’s bouses. His machine was running; whether he could have stopped in time was a question of due care for the jury. We think the Harrison case is distinguishable from the present action. Tbe second main assignment of error by defendant was to the effect that the court below improperly instructed the jury in regard to the duty of defendant in reference to safety device or watchman at the. crossing where plaintiff’s intestate -was killed. This assignment of error cannot be sustained. *637 There was continuous traffic across Johnson Street used by automobiles, trucks bicycles, and all kinds of conveyances and as a walkway. At the time there was a negro school in session; about 500 children attend the school, and about 75 per cent have to cross Johnson Street to go to the school; near the crossing there are two stores on the south side and an ice-house on the north side. “There are probably 75 houses, stores, churches and sehoolhouses on the east side of the railroad where Johnson Street runs; that is the way they get across there unless they go through and strike the old No. 10 about a quarter of a mile. "Johnson Street is our only way in and out; it is used largely.” At the crossing “there are no gates kept there by the railroad company, no bells, gongs or devices of any kind to warn the approach of trains and no watchman there.” On the evidence the court below charged the jury as follows: “A railroad company is not legally bound to provide and maintain gates at street and highway crossings along its line, unless so required by statute or ordinance, or unless it appears that the particular crossing is peculiarly dangerous. In the absence of a statutory requirement it is not negligence per se (in itself) for a railroad company to fail to maintain a flagman or watchman at a grade crossing of its track and a public road to warn travelers on such road of approaching trains. The mere absence of a statute requiring a flagman or watchman at crossings will not, however, of itself relieve the railroad company from the duty to maintain one, and where a crossing is so peculiarly dangerous that the reasonable safety of the traveling public requires the presence of a flagman or other extraordinary means to signal the approach of the trains, it is incumbent upon the railroad company to employ such means. It is for the jury to say whether under all the circumstances of a particular case the railroad has been guilty of negligence in not maintaining a flagman or watchman at a particular crossing. Before a jury will be warranted in saying, in the absence of any statutory direction to that effect, that a railroad company should keep a flagman or watchman at a crossing, it must first be shown that such crossing is more than ordinarily hazardous, as for instance, that it is in a, thickly populated portion of a town or city, or that the view of the track is obstructed either by the company itself or by other objects proper in themselves. The frequency with which trains are passing, and the amount of travel, or noise, are also' material circumstances in considering the question of danger.” It will be noted that the court below charged in the present action on the evidence: “It must first be shown that such crossing is more than ordinarily hazardous, as for instance, that it is in a thickly populated portion of a town or city, or that the view of the track is obstructed either by the company itself or by other objects proper in themselves. *638 The frequency witb which, trains are passing, and the amount of travel, or noise, are also material circumstances in considering the question of danger.” In Batchelor v. R. R., 196 N. C., at p. 87, speaking to the subject, it is said: “Applying these principles of law to the facts disclosed by the record, there is no evidence of obstruction existing at this crossing; neither is there evidence that the vision of a traveler was obscured by curves, embankments, buildings or other conditions, which rendered the crossing more than ordinarily hazardous, nor does the record disclose any condition of peculiar danger. Therefore, we hold that the failure of the defendant to maintain gates or gongs at this crossing was no evidence of negligence.” In the present action the evidence was plenary to be submitted to the jury that the vision of the traveler was obstructed which rendered the crossing more than ordinarily hazardous and peculiarly dangerous. It must be borne in mind that this was not a country crossing, or in a thinly settled community, but a street of a town thickly populated, much traveled, a busy thoroughfare. Defendant’s train frequently passed it day and night. R. R. v. Ives, 144 U. S., 408; Dudley v. R. R., 180 N. C., 34; Blum v. R. R., 187 N. C., 640; Finch v. R. R., supra. It will be noted that in all the cases in this jurisdiction where the question was left to the jury, the evidence was similar to that in the present action. The evidence was different in the Batchelor case, supra, the evidence was that “plaintiff’s intestate was traveling on a much traveled road as a county road, but not as a highway.” The Batchelor case, supra, is annotated in 60 A. L. R., 1091. The annotations give numerous citations from many States and cites the Batchelor case under the following, at p. 1096(a) : “It may be stated generally that, unless required by statute or order, a railroad company is under no duty to provide gates, gongs, or other safety devices at public crossings, and that, therefore, the failure to do so at any particular crossing is not negligence per se.” The Dudley and Blum cases, supra, are annotated at p. 1196(b) : “Where the evidence shows that a railroad crossing is for any reason peculiarly dangerous, it is a question for the jury whether the degree of care which a railroad company is required to exercise to avoid accidents at crossings imposes on the company the duty to provide safety devices at that crossing.” The Batchelor case, supra, sustains this position. The following is set forth in Roses’ Notes on United States Reports, Revised Ed., Supplement, Vol. 3, at p. 197: “Whether ordinary care requires flagman at crossing is for jury. Followed in Panama Railroad Company v. Pigot, 254 U. S., 553, 65 L. Ed., 43, 41 Sup. Ct., 200, in action for death of minor of seven years, question of whether proper *639 care required railroad to have flagman or gate at crossing was for jury. Lofland’s Brickyard Crossing Cases, 5 Boyce (Del.), 157, 91 Atl., 288, in action for injuries in crossing accident, failure of railroad to station flagman at crossing is evidence to be submitted to jury; Glanville v. Chicago R. I. & P. R. Co., 190 Iowa, 180, 180 N. W., 155, in action for injuries received in collision of automobile witb train, failure to maintain flagman or signaling device is not basis for charge of negligence, in absence of showing crossing is unusually dangerous; Wichita Falls & N. W. Co. v. Grovers, 81 Okla., 53, 196 Pac., 678, in action for death from backing of train at railroad crossing, whether railroad was negligent in not maintaining flagman or automatic signals, though no statute or ordinance required them, was for jury.” (Italics ours.) We think the court laid down the rule in the charge approved in this jurisdiction in this particular action. The generalities in the charge on the subject is not so antagonistic or conflicting as would be held prejudicial or reversible error, as was held in May v. Grove, 195 N. C., 235. The third main assignment of error by defendant was in regard to the charge on sudden peril and emergencies. We do not think this can be sustained. Parker v. R. R., 181 N. C., at p. 103; Odom v. R. R., 193 N. C., 442. The other assignments of error as to admissibility of testimony and other exceptions to the charge, we do not think, if error, are reversible or prejudicial. On the whole record it appears that the court below tried the action with care and the charge covered every phase of the law bearing on the evidence. We can find in law No error.