Inman v. North Carolina R. R.

Hoke, L, after stating the case: There was ample evidence to justify a verdict for plaintiff on the first issue, and the objection chiefly urged for error is that the Court below declined to charge, as requested to do, in substance, that on his own evidence plaintiff was guilty of contributory negli *126 gence, and that, if the jury believed the testimony, they would answer that issue in favor of defendant. But, in our opinion, on the facts presented, the authorities will not sustain defendant’s position. In Sherrill v. R. R., 140 N. C., 252, the Court held: “That while one who approaches a railroad crossing is required to look and listen before entering upon the track, and when he fails in this duty and is injured in consequence, the view being unobstructed, under .all ordinary conditions, such person is guilty of contributory negligence. Yet, this obligation to look and listen may, in exceptional cases, be so qualified by facts and attendant circumstances as to require the question of a plaintiff’s contributory negligence to be submitted to a jury.” This principle, together with the limitation stated, was again upheld in the case of Morrow v. R. R., 146 N. C., 14, where Mr. Justice Brown quotes with approval from the case of Lavarenz v. R. R., 56 Iowa, 689, as follows: “That a person who'Voluntarily goes on a railroad track, at a point where there is an unobstructed view of the. track, and fails to look and listen for danger, cannot recover for an injury that might have been avoided by so looking and listening; but when the view is obstructed, or other facts exist which tend to complicate the matter, the question of contributory negligence then becomes one for the jury.” This doctrine is in accord with well considered decisions' in other jurisdictions, some of them cited in Sherrill's Case, supra. Notably, the case of Lavarenz v. R. R., supra, and Jennings v. R. R., 112 Mo., 268. And its correct application to the facts presented here, requires that the question of contributory negligence on part of plaintiff should be submitted to the jury. There is doubt on the facts and attendant circumstances of this case, where there are several tracks, with trains constantly moving in both directions and crossings at intervals, if a signal whistle sounded three hundred feet from *127 a crossing should be regarded as adequate warning, even if it had been given as claimed by defendant, and, it will be noted, that the city ordinance, offered in evidence, prohibited the blowing of whistles within the corporate limits, and the lawful and usual warning at such places, therefore, must have been the continuous ringing of a bell as a train or engine approached. The plaintiff then standing at most within two paces of the tract, with the view obstructed, and having listened for the warning, he had a right to expect, and which it was the duty of the engineer to give, steps upon the track and is run over by an engine running at a rate far beyond what the city ordinance permits, and far beyond what could be at all justified in such place even if there had been no ordinance. The facts relevant to this especial feature of the case are not unlike those of Alexander v. R. R., 112 N. C., 720, in which a recovery by the plaintiff was sustained, and similar decisions have been made in other cases of like import. See Hinkle’s Case, 109 N. C., 472; Norton’s Case, 122 N. C., 910. There was no error, therefore, in submitting the question of contributory negligence to the consideration of the jury, and the judgment below will be affirmed. No error.