Godwin v. Atlantic Coast Line Railroad

Stacy, C. J. The question for decision is whether the plaintiff’s contributory negligence is such as to bar a recovery. The pertinent authorities would seem to suggest an affirmative answer. Temple v. Hawkins, ante, 26; Hampton v. Hawkins, 219 N. C., 205, 13 S. E. (2d), 227; Pitt v. R. R., 203 N. C., 279, 166 S. E., 67; Godwin v. R. R., 202 N. C., 1, 161 S. E., 541; Batchelor v. R. R., 196 N. C., 84, 144 S. E., 542; Harrison v. R. R., 194 N. C., 656, 140 S. E., 598; Elder v. R. R., ibid., 617, 140 S. E., 298; Holton v. R. R., 188 N. C., 277, 124 S. E., 307; *285 Davis v. R. R., 187 N. C., 147, 120 S. E., 827; Wright v. R. R., 155 N. C., 325, 71 S. E., 306; Coleman v. R. R., 153 N. C., 322, 69 S. E., 251; Mesic v. R. R., 120 N. C., 489, 26 S. E., 633; Rigler v. R. R., 94 N. C., 604. It is tbe prevailing and permissible rule of practice to enter judgment of nonsuit in a negligence case, wben it appears from tbe evidence offered on bebalf of tbe plaintiff tbat bis own negligence was tbe proximate cause of tbe injury, or one of tbem. Battle v. Cleave, 179 N. C., 112, 101 S. E., 555; Wright v. R. R., supra; Beck v. Hooks, 218 N. C., 105, 10 S. E. (2d), 608. Tbe plaintiff thus proves himself out of court. Horne v. R. R., 170 N. C., 645, 87 S. E., 523. It need not appear tbat bis negligence was tbe sole proximate cause of tbe injury, as this would exclude any idea of negligence on tbe part of tbe defendant. Absher v. Raleigh, 211 N. C., 567, 190 S. E., 897. It is enough if it contribute to tbe injury. Wright v. Grocery Co., 210 N. C., 462, 187 S. E., 564. Tbe very term “contributory negligence” ex vi termini implies tbat it need not be tbe sole cause of tbe injury. Fulcher v. Lumber Co., 191 N. C., 408, 132 S. E., 9. Tbe plaintiff may not recover, in an action libe tbe present, wben bis negligence concurs with tbe negligence of tbe defendant in proximately producing tbe injury. Construction Co. v. R. R., 184 N. C., 179, 113 S. E., 672. Tbe reason tbe defendant’s evidence is not to be considered on a motion of this kind, unless favorable to tbe plaintiff and except for explanatory purposes wben not in conflict with plaintiff’s evidence, Harrison v. R. R., 194 N. C., 657, 140 S. E., 598, is tbat tbe burden of showing contributory negligence rests with tbe defendant. Nevertheless, wben it appears from tbe plaintiff’s own evidence that be was contributorily negligent, which pro hoc vice partakes of tbe nature of admissions, it is proper to dismiss tbe action as in case of nonsuit. Davis v. R. R., supra, and cases there cited. In other words, while tbe defendant has tbe burden of proof on tbe issue of contributory negligence, and the credibility of bis evidence would be for tbe jury, tbe plaintiff may relieve him of tbe onus by bis own evidence and thus reduce tbe case to a question of law for tbe court. Hayes v. Tel. Co., 211 N. C., 192, 189 S. E., 499. What is negligence is a question of law, and, wben tbe facts are admitted or established, tbe court declares whether negligence exists and whether it is tbe proximate cause of tbe injury, or one of tbem. Pearson v. Stores Corp., 219 N. C., 717; Murray v. R. R., 218 N. C., 392, 11 S. E. (2d), 326; Dunnevant v. R. R., 167 N. C., 232, 83 S. E., 347; Mitchell v. R. R., 153 N. C., 116, 68 S. E., 1059; Strickland v. R. R., 150 N. C., 4, 63 S. E., 161. Such is the case presented by tbe instant record. Tbe reciprocal duties and obligations of trainmen and travelers on approaching a public crossing were considered in Moore v. R. R., 201 *286 N. C., 26, 158 S. E., 556. There it was said: “When approaching a public crossing the employees in charge of a train and a traveler upon the highway are charged with the mutual and reciprocal duty of exercising due care to avoid inflicting or receiving injury, due care being such as a prudent person would exercise under the circumstances at the particular time and place. 'Both parties are charged with the mutual duty of keeping a careful lookout for danger and the degree of diligence to be used on either side is such as a prudent man would exercise under the circumstances of the case in endeavoring to perform his duty.’ Improvement Co. v. Stead, 95 U. S., 161, 24 Law Ed., 403, cited in Cooper v. R. R., 140 N. C., 209. On reaching the crossing and before attempting to go upon it, a traveler must use his sense of sight and hearing — must look and listen for approaching trains if not prevented from doing so by the fault of the railroad company; and this he should do before entering the zone of danger. Johnson v. R. R., 163 N. C., 431; Holton v. R. R., 188 N. C., 277; Butner v. R. R., 199 N. C., 695. This, as we understand it, is the prevailing rule. At any rate it is observed and has often been applied by this Court.” In the application of this rule it is recognized that “a railroad crossing is itself a notice of danger, and all persons approaching it are bound to exercise care and prudence, and when the conditions are such that a diligent use of the senses would have avoided the injury, a failure to use them constitutes contributory negligence and will be so declared by the court.” Coleman v. R. R., supra; Carruthers v. R. R., 215 N. C., 675, 2 S. E. (2d), 878. We have said that a traveler has the right to expect timely warning, Norton v. R. R., 122 N. C., 910, 29 S. E., 886, hut the failure to give such warning would not justify the traveler in relying upon such failure or in assuming that no train was approaching. It is still his duty to keep a proper lookout. Harrison v. R. R., supra; Holton v. R. R., supra. “A traveler on the highway, before' crossing a railroad track, as a general rule, is required to look and listen to ascertain whether a train is approaching; and the mere omission of the trainmen to give the ordinary or statutory-signals will not relieve him of this duty.” Fourth headnote, Cooper v. R. R., 140 N. C., 209, 52 S. E., 932. The same rule.was declared in Johnson v. R. R., 163 N. C., 431, 79 S. E., 690, where Wallcer, J., speaking for the Court, used the following-language : “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.” *287 In actions involving negligence and contributory negligence, it is often difficult to determine whether the case is one for the jury or one exclusively for the court. Meacham v. R. R., 213 N. C., 609, 197 S. E., 189. This has led to the suggestion that two lines of decisions are to be found on the subject. Eller v. R. R., 200 N. C., 527, 157 S. E., 800. It is conceded on all hands, however, that a motion to nonsuit tests the sufficiency of the evidence to carry the casé to the jury and to support a recovery. The question thus presented by demurrer, whether interposed at the close of plaintiff’s evidence, or “upon consideration of all the evidence,” C. S., 567, is to be decided by the court as a matter of law, and not by the jury as an issue of fact. Whether the evidence is such as to carry the case to the jury is always for the court to determine. A demurrer raises only questions of law. , The case lends itself to much writing, but in the end it all comes to this: Plaintiff testifies that she was familiar with the crossing; that she knew the schedule of defendant’s trains; that she stopped the second time about nine feet from the spur track, looked in the direction the train was coming and did not see it — -not that she could not see it, but that she did not see it — and then proceeded slowly towards the crossing without seeing or hearing the train until “it was right on me.” It thus appears, from her own testimony, that she started her car and drove a distance of at least 20 feet across two tracks and onto a third in front of an on-coming-train which she knew was due to pass about that time and which she should have seen in the exercise of reasonable care. This was negligence on her part which contributed to the injury. Tart v. R. R., 202 N. C., 52, 161 S. E., 720. It results, therefore, that the motion for judgment of nonsuit should have been allowed. Reversed.