Coltrain Ex Rel. Coltrain v. Atlantic Coast Line Railroad

Clarkson, J. The Atlantic Coast Line Eailroad Company, defendant, states the questions involved as follows: “(1) Is the plaintiff as a matter of law guilty of contributory negligence barring recovery? (2) Is there error in the charge?” We think both questions must be answered against the defendants. At the close of plaintiff’s evidence and at the conclusion of all the evidence, the defendants made motions in the court below for judgment as in case of nonsuit. C. S., 567. The court below overruled these motions and in this we can see no error. 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 his 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 he is entitled to the benefit of every'reasonable intendment upon the evidence, and every reasonable inference to be drawn therefrom. In Moseley v. R. R., 197 N. C., 628 (635-6), it is said: “A serious and troublesome question is continually arising as to how far a court will declare certain conduct of a defendant negligent and certain conduct of a plaintiff contributory negligence and take away the question of negligence and contributory negligence from the jury. The right of *268 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’s evidence was to the effect that defendant railroad neither blew a whistle nor rang a bell on approaching the public crossing where the injury to plaintiff occurred. That the plaintiff Nathaniel Coltrain, before going on the track, stopped fifteen feet from the track, looked both ways and did not see or hear the train. After stopping he started off in low gear, going about five miles an hour. The view of the train was obstructed by pine tops partly lying on the right of way of the railroad, which affected the ability of plaintiff to see the train approaching through a cut. Plaintiff testified: “As I went towards the railroad track I was driving carefully and looking and listening. . . . Q. Could you have heard that train if it had blown or rung a hell? A. Yes, sir.” J. H. Coltrain testified: “You practically couldn’t see anything until you got right on the track.” ' In Pokora v. Wabash Ry. Co., 292 U. S., 98, 54 Sup. Court Reporter, 580 (581), Mr. Justice Cardozo, delivering the unanimous opinion of the Court, said: “The burden of proof was on the defendant to make out the defense of contributory negligence. Miller v. Union Pac. R. R., 290 U. S., 227, 232, 54 S. Ct., 172, 78 L. Ed., 285. The record does not show in any conclusive way that the train was visible to Pokora while there was still time to stop. ... In such circumstances the question, we think, was for the jury whether reasonable caution forbade his going forward in reliance on the sense of hearing, unaided by that of sight. No doubt it was his duty to look along the track from his seat, if looking would avail to warn him of the danger. This does not mean, however, that if vision was cut off by obstacles, there was negligence in going on, any more than there would have been in trusting to his ears if vision had been cut off by the darkness of the night. Cf. Norfolk & W. Ry. v. Holbrook (C. C. A.), 27 F. (2d), 326. Pokora made his crossing in the daytime, but like the traveler by night he used the faculties available to one in his position. Johnson v. Seaboard Air Line R. Co., 163 N. C., 431, 79 S. E., 690, Ann. Cas., 1915 B, 598; Parsons v. Syracuse, B. & N. Y. R. Co., 205 N. Y., 226, 228, 98 N. E., 331. A jury, but not the court, might say that with faculties thus limited he should have found some other means of assuring himself of safety before venturing to cross.” The Johnson case, supra, quoted by Justice Cardozo, was written by Walker, J., of this Court, a unanimous opinion. Mr. Justice Walker was one of the most careful Justices that ever sat on this Court and had an infinite capacity for painstaking. At pp. 442, 443 and 444, it is said: “As generally pertinent to the case in hand, we may formulate the following rules : (1) Where a railroad track crosses a public highway, both *269 a traveler and the railroad have equal rights to cross; but the traveler must yield the right of way to the railroad company in the ordinary course of the latter’s business. Duffy v. R. R., 144 N. C., 26. (2) While a train has the right of way at a crossing, it is the duty of the engineer to give signals and exercise vigilance in approaching such crossings. Coleman v. R. R., 153 N. C., 322. (3) A railroad company and a traveler on a highway crossing are charged with a mutual duty of keeping a careful lookout for danger; the greater the danger, the greater the care required of both. R. R. v. Hansbrough’s Admx., 107 Va., 733. (4) On reaching a railroad crossing, and before attempting to go upon the track, a traveler must use his sense of sight and of hearing to the best of his ability under the existing and surrounding circumstances— he must look and listen in both directions for approaching trains, if not prevented from doing so by the fault of the railroad company, and if he has time to do so; and this should be done before he has taken a position exposing him to peril or has come within the zone of danger, this being required so that his precaution may be effective. Cooper v. R. R., 140 N. C., 209; Coleman v. R. R., 153 N. C., 322; Wolfe v. R. R., 154 N. C., 569, in the last of which cases the rule was applied to an employee charged with the duty of watching a crossing and warning travelers of the approach of trains, and he was required to exercise due care, under the rule of the prudent man, for his own safety by looking and listening for coming trains. (5) The duty of the traveler arising under this rule is not always an absolute one, but may be so qualified by attendant circumstances as to require the issue as to his contributory negligence, by not taking proper measures for his safety, to be submitted to the jury. Sherrill v. R. R., 140 N. C., 255; Wolfe v. R. R., supra. (6) If he fails to exercise proper care within the rule stated, it is such negligence as will bar his recovery. Provided, always, it is the proximate cause of his injury. Cooper v. R. R., supra; Strickland v. R. R., 150 N. C., 7; Wolfe v. R. R., supra. (7) If his view is obstructed or his hearing an 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 there is any danger ahead, negligence will not be imputed to him, but to the company, its failure to warn him being regarded as the proximate cause of any injury he received. Mesic v. R. R., 120 N. C., 489; Osborne v. R. R., supra (160 N. C., 309). (8) If a traveler is without fault, or if his fault is either excused by some act of the company or is not the proximate cause of his injury, the company having the last clear chance, and if in attempting to cross track on a highway *270 be is suddenly confronted by a peril, be may without tbe imputation of negligence adopt sucb means of extrication as are apparently necessary, and is only beld to sucb measure of care as a man of ordinary prudence would exercise in tbe same circumstances. Vallo v. Express Co., 14 L. R. A., 745; Lincoln v. Nichols, 20 L. R. A., 855; Crampton v. Ivie Bros., 124 N. C., 591, and especially Douglas v. Railway, 82 S. C., 71; 3 Elliott on Railroads (2 Ed.), sec. 1173.” Tbe principles set forth in tbe Johnson case, supra, have been consistently followed by this Court. We think tbe facts in this case are on “all fours” with tbe case of Moseley, supra. Similar cases are: Lincoln v. R. R., 207 N. C., 787; Preddy v. Britt, 212 N. C., 719; White v. R. R., ante, 79. Tbe law in all tbe cases above cited has been so thoroughly gone into recently that we can see no reason for repetition in this cause. We have read tbe record and learned briefs of tbe litigants with care; none of tbe ■exceptions and assignments of error made by defendants can be sustained. On tbe record there is no prejudicial or reversible error. No error.