Eller v. North Carolina Railroad

BbogdeN, J. The case presents this situation: Hoke Street in the city of Burlington is an improved and paved street. The tracks of defendant crossed this street at grade. Park Avenue, a paved and improved street, is on the south side of the tracks. The plaintiff approached this crossing, without stopping, although he looked and listened and neither heard nor saw a train. The side curtains were up. When he came in line with Park Avenue, a distance of 40 or 50 feet from the track, he had a clear sweep of unobstructed vision for at least 300 to 400 yards, except for the fact that a car crossing the tracks at the time interfered with the view. At the instant his car ran upon the track a fast passenger train, exceeding the speed limit, was upon him. He turned sharply to the right, and the wheels of his car were caught between the main rail and the guard rail, and he was seriously and permanently injured. *531 There are two lines of decisions involving crossing accidents that run through the body of our law, as clearly marked and defined as the Gulf Stream that runs through the midst of the ocean. The first line is represented, among others, by the following decisions: Edwards v. R. R., 129 N. C., 78; Shepard v. R. R., 166 N. C., 539; Perry v. R. R., 180 N. C., 290; Williams v. R. R., 187 N. C., 348; Franklin v. R. R., 192 N. C., 717; Moseley v. R. R., 197 N. C., 628; Scoggins v. R. R., 199 N. C., 631; Thurston v. R. R., 199 N. C., 496; Butner v. R. R., 199 N. C., 695. The second line is represented, among others, by the following decisions, to wit: Rigler v. R. R., 94 N. C., 604; Coleman v. R. R., 153 N. C., 322; Davidson v. R. R., 171 N. C., 634; Holton v. R. R., 188 N. C., 277; Elder v. R. R., 194 N. C., 617; Harrison v. R. R., 194 N. C., 656; Pope v. R. R., 195 N. C., 67; Batchelor v. R. R., 196 N. C., 84; Herman v. R. R., 197 N. C., 718. The paramount question of law is whether the case at bar is governed by the principles announced in the first line or second line aforesaid. Perhaps a book of imposing dimensions could be written upon the various phases of law discussed and applied in the decisions, but upon a consideration of the entire record, we are of the opinion, and so hold, that the case is governed by the principles applied in the second line. Therefore, the plaintiff is not entitled to recover, and the motion for nonsuit should have been granted. The plaintiff, however, in order to avoid classification in the second line above mentioned, asserts and contends that there are two elements of negligence on the part of defendant in addition to failure to ring the bell or sound the whistle, which would warrant recovery. The first element is that no watchman was maintained at the Hoke Street crossing and no signaling devices of any sort to give notice of the approach of the train. It is well settled that a failure to provide a watchman or signaling devices at railroad crossings may in proper cases be considered by a jury upon the question of negligence of the railroad company in personal injury suits for crossing accidents. However, the fact that a crossing was much used and populous, standing alone, has not yet been deemed sufficient by this Court to raise the question. The authorities upon the subject are assembled in Batchelor v. R. R., 196 N. C., 84. In all cases in which the doctrine has been applied there have been elements of obstructed vision resulting from structures, curves or embankments or other conditions of peculiar danger interfering with the view of a traveler undertaking to cross the track. The second element of negligence insisted upon by the plaintiff is that a car crossing the track at the time he arrived obstructed his view. Such obstruction, however, was not due to any fault of the railroad company, and, indeed, was a circumstance wholly beyond its control. This element was discussed in Lee v. *532 R. R., 180 N. C., at page 413. The plaintiff contended in that case that his vision was obstructed by smoke. The Court said: “If the plaintiff had a bandage across his eyes, the law would not permit him to walk on a track, where he might reasonably expect a train without removing it, and the smoke was as effective as a bandage would he in obscuring or blotting out the vision for the time and almost as easily and speedily gotten rid of.” There is a contention that there is a space of three and a half inches between the guard rail and the main rail, and that this rendered the crossing dangerous and constituted an element of negligence by reason of the fact that the wheels of plaintiff’s car caught in this space. There was evidence tending to show that the flange on a car wheel is about one and a half inches. However, there is no evidence that a space of three ■and a half inches between the main rail and the guard of the track constituted negligent construction. In the final analysis the facts present the typical case of a traveler approaching a grade crossing in the day time and with an unobstructed vision for three or four hundred yards, who proceeds without stopping fifty feet or more through such area of unobstructed vision and comes upon a track at an instant when a fast passenger train is dangerously near and almost upon him. The evidence discloses that Mr. Coulter crossed the track when the train was 150 feet away. The plaintiff was fifteen to twenty feet behind Mr. Coulter. Manifestly, he took a chance and lost. Under the circumstances, it is the judgment of the Court that he is not entitled to recover. Reversed.