Cashatt v. . Brown

ClaRKSON, J. We do not think the nonsuit can be sustained. The allegations of the complaint and the evidence were to the effect that the Baughn’s Crossing was used prior to the construction of defendant’s road and since its construction, “the public and other persons who desired to visit the place and persons who occupied said two houses eon- *371 stantly and habitually used said crossing, and said usage was acquiesced in and approved by said defendant company.” In Stone v. R. R.; 197 N. C., 429 (431), it is said:' “The duty of a railroad company with respect to the maintenance of a crossing over its track, where its track has been constructed over an established road or highway, whether public or private, is well settled. The duty is prescribed by statute, C. S., 3449, and has been recognized and enforced by this Court in numerous decisions. In Goforth v. R. R., 144 N. C., 569, 57 S. E., 209, it is said: ‘It is just that crossings necessitated by the construction and operation of a railroad should be kept in a safe condition by it.’ As the crossing is on the railroad company’s right of way, no one except the company has the right to enter upon the crossing for the purpose of repairing the same. ... So long, however, as it permits the public to use the crossing, it must respond in damages caused by its negligence in failing to exercise due care to maintain the crossing in a reasonably safe condition.” Moore v. R. R., 201 N. C., 26. The testimony of R. M. Hundley, a witness for the plaintiff, was, in part, as follows: “I have known Baughn’s Crossing in Rockingham County, about a half mile from Price, for 15 or 18 years. At the times I have known it, I think the public travels it and I have been over it myself, and have seen other people crossing it. . . . Q. Now, describe the condition of the ballast between the rails of the main line track as you saw it there after the train hit the car? A. 'Well, there was scarcely any in there. It was beat down or washed down to the top of the erossties — you could see the rail pins, spikes, I believe they call them. The ballast was about 4 inches below the top of the rail. With reference to the ballast between the rails on the main line track, there was practically not any in there above the crossties, and you could see the top of the crossties and also the spikes. The time I am telling about was about an hour after the wreck, the same day, same afternoon. I have been back there since that time, and I was back there in about 2 or 3 weeks after that and it was in the same condition then as it was the day of the wreck.” The allegations in the complaint: “The plaintiff’s intestate drove his said car very slowly across the sidetrack and after crossing the said track immediately drove his car onto the main track, and as his car crossed the western rail of the main track the said car dropped down between said rails of the main track and stopped, and without any warning or signals, a locomotive or engine of the defendant company, and operated by the defendant’s engineer, negligently struck said car, demolishing the same and killing plaintiff’s intestate.” The testimony of Rev. T. G-. Williams, in part: “Now, as we came down there, Mr. Campbell was driving about five miles an hour through the cut, and as we-approached the track, driving, I would say, five miles *372 an hour, we drove up across tbe sidetrack onto tbe main line track, to tbe best of my knowledge, tbe front wheels must bave been 12 incbes over tbe west rail and' tbe car stopped, and in tbe moment tbe car stopped I looked toward 'Winston-Salem, wbicb is south, and I noticed tbe train approaching. I said, ‘Yonder is tbe train.’ Mr. Campbell dropped bis band on tbe shift gear lever and be didn’t say anything. I opened tbe door and jumped. It was tbe righf-hand door next to tbe train — the moment I bit tbe ground tbe train bit tbe car and knocked it 60 feet.” There was other evidence corroborating tbe above evidence set forth. There was also evidence that tbe defendant railroad’s engineer gave no warning or signals for tbe crossing. No blow or bell ringing for tbe crossing was beard. Tbe train was running about 40 miles an hour. Tbe case of Stone v. R. R., supra, is in many respects similar: This was an “action to recover damages resulting from injuries to plaintiff’s automobile, caused by tbe negligence of defendant in failing to exercise due care (1) to maintain a public crossing wbicb passes over its track, in a reasonably safe condition, and (2) to stop its train before it struck and injured tbe automobile, wbicb, by reason of tbe defective condition of said crossing, plaintiff was unable to drive off or move from said track in time to avoid tbe injury.” There was a judgment for plaintiff and this Court, in sustaining tbe judgment, said: “. . . All tbe evidence tended to show that tbe crossing was defective, in that there was a bole on tbe right of way, just beyond tbe crossties, and that this bole was not discovered by plaintiff before tbe wheel of bis automobile dropped into it, causing the running board of bis automobile to rest upon tbe ground. Plaintiff was unable to drive bis automobile off tbe track, or to move it therefrom before it was struck and injured by defendant’s train, which appeared after plaintiff bad driven upon tbe crossing.” We think tbe evidence is sufficient to be submitted to tbe jury to determine whether tbe plaintiff’s intestate was guilty of contributory negligence, and, if so, whether bis negligence was tbe proximate cause of tbe injury. In Elder v. R. R., 194 N. C., 617 (619), speaking to tbe subject of contributory negligence, we find: “Contributory negligence, such as will defeat a recovery in a case like tbe one' at bar, is tbe negligent act of tbe plaintiff, wbicb, concurring and cooperating with tbe negligent act of tbe defendant, thereby becomes tbe real, efficient, and proximate cause of tbe injury, or tbe cause without wbicb tbe injury would not bave occurred. Moore v. Iron Works, 183 N. C., 438.” Por tbe reasons given, tbe judgment of tbe court below is Reversed. CONNOR, J., dissents.