Penninger v. Norfolk Southern Railroad

HoKE, J. It was urged for error on the part of defendant that the case should have been nonsuited on motion, and chiefly upon the ground thatjplaintiff, on his own showing, was guilty of contributory negligence as a matter of law. The position is allowed to prevail in restricted instances, when upon the entire testimony making in support of plaintiff’s claim, accepted as true and construed in the light most favorable to him, it is clear that he has been guilty of contributory negligence. Trull’s case, 151 N. C., 545; Neal’s case, 126 N. 0., 638, and others. But the principle may not be applied to the facts as they appear in the present record. On the trial of the issues, the evidence on the part of plaintiff tended to show that, on the afternoon of 12 March, 1914, about 6 o’clock, plaintiff left Kensington’s store, about 125 to 150 feet from the crossing, going towards his home, which was on the other side of the track; that, on the way towards the crossing and extending 75 feet from the track, there were piles of cross-ties which obstructed the view of the track towards the east, and, further, there was a traction engine on the right of way, also obstructing the view; that plaintiff could see the rail track as he left the store and for 70 feet or so, and that he looked and listened for a train in that direction and heard no signal or anything to indicate its approach; that there was five feet open space from the track to the first pile of cross-ties, and as plaintiff stepped on the crossing he looked towards Charlotte, as he was expecting a train from that direction, and, as he was passing over the crossing, he heard the wheels of the train approaching from the east, and, as he sprang to escape from the track, his foot went down in a hole or open space, so that he had to make two or three hard jerks before he got loose, and as he turned his shoulder towards the train he was struck by the beam of the engine pilot and thrown about 140 feet, breaking his arm in two or more places so that *475 it bad to be amputated; that tbe schedule time for this train, going towards Charlotte, was 2 o’clock; that this was a much-frequented crossing of a public road running through North Tryon, a suburban mill village of the city of Charlotte, and the train in question was going at a rapid rate of speed and ran on the crossing without signal or other warning. Upon this, the evidence in support of plaintiff’s claim, and under the principles established in numerous cases on the subject, the issue of contributory negligence on paft of plaintiff was necessarily and properly submitted to the jury for decision. Johnston v. R. R., 163 N. C., 431; Fann v. R. R., 155 N. C., 136; Wolf v. R. R., 154 N. C., 569; Farris v. R. R., 151 N. C., 483; Inman v. R. R., 149 N. C., 126; Morrow v. R. R., 146 N. C., 14; Sherrill v. R. R., 140 N. C., 257; Norton v. R. R., 122 N. C., 910. Speaking to the question in Farris'1 case, supra, Associate Justice Manning said: “While we are in no wise inclined to relieve the person crossing the tracks of a railroad from the imperative duty of observing the measure of caution so well established for his safety by the well-considered decisions of this and other courts, yet ‘it cannot always be .said that he is guilty of contributory negligence, as a matter of law, because he did not continue to look and listen at all times continuously for approaching trains, where he was misled by the company or his attention was rightly directed to something else as well’ (3 Elliott on Eailroads, sec. 1166 a), or that he failed to look in opposite directions at the same moment of time. As is said by Mr. Justice Hoke, in Sherrill v. R. R., 140 N. C., 252: ‘It is further held that, negligence having been first established, facts and attendant circumstances may so qualify this obligation to look and listen as to require the question of ■contributory negligence to be submitted to the jury, and in some instances the obligation to look and listen may be altogether removed.’ Inman v. R. R., 140 N. C., 123; Morrow v. R. R., 146 N. C., 14.” And in Rodrian v. R. R., 125 N. Y., 526, quoted with approval in Sherrill’s case, supra, Agnew, J., said: “But when one has looked for an approaching train, it does not necessarily follow as a matter of law that he was remediless because he did not look at the precise time and place when and where looking would have been to the most advantage.” In the present case, accepting plaintiff’s evidence as true, he had looked and listened for a train coming from the east as he left the store, and for the first 23 steps, until his view in that direction was obstructed by the traction engine, and piles of cross-ties placed by the company on its right of way, and, in the two steps open, as he stepped upon the cross-ties he looked towards Charlotte, the other direction, because the train was then expected from that point, the schedule time for the present train having been long past, when he was run over and injured by a train coming at an improper rate of speed through a mill village *476 and which ran on a much frequented crossing without any warning. There was evidence also permitting the inference that the crossing was not in a proper condition, under the principle approved in Goforth v. R. R., 144 N. C., 569; Raper v. R. R., 126 N. C., 568. In support of defendant’s position, we were referred by counsel to Trull's case, 151 N. C., 545, and to Mitchell's case, 153 N. C., 116, and to Colemans case, 153 N. C., 322. In Trull's case the intestate, standing at a crossing in a position of safety, stepped unexpectedly in front of a switching engine which ran onto the crossing without giving any warning, and was killed. The engine had passed him just a moment before, giving indication that the tracks were being used for switching purposes. There was nothing to obstruct the intestate’s view or to distract his attention, and the Court held that there was nothing to qualify the intestate’s obligation to be careful for his own safety, and he was guilty of contributory negligence as a matter of law. And speaking to the precise question a.s presented in the cases of Coleman and Mitchell, supra, in a subsequent ease of Fann v. R. R., 155 N. C., 136, the Court said: “In Coleman's case the plaintiff testified, it is true, that he had both looked and listened, but he also stated that he had done this some distance back from the crossing where his view was obstructed by houses, and that he afterwards, in daylight, drove in a buggy ‘with curtains buttoned down both sides and back, across an open space of 65 feet, affording full opportunity to see down the track the way the train came for three-fourths of a mile, and without any effort to further look or listen.’ There was nothing here to qualify his obligation to care for his own safety, and recovery was denied. In Mitchell's case a deaf and dumb negro, familiar with the schedule of the trains and a frequenter of the train yards, walking towards the crossing just at the time when a train was scheduled to arrive, stopped where a box car obstructed his view and then, with eleven feet of clear space, walked across the track without looking just as a fast train approached, and was struck and permanently injured. There was no evidence that plaintiff had listened for signals, and, hearing none, was induced to venture on the track for that reason, as in Inman’s case and.in Nortons case. There was nothing shown to distract his attention.” On the facts apT)earing in the present appeal, the case comes rather under the principle as applied in Inman’s case and Norton's case, supra, and, in our opinion, as stated, the motion to nonsuit was properly denied. There was abundant evidence on the part of defendant tending to show that the defendant’s train was being properly operated at the time and that the proper signals were given, and, furthermore, that, plaintiff received his hurt because he was not properly attentive to his own safety. But, under a charge free from error, the jury has accepted plaintiff’s *477 version of the occurrence, and, tbis being true, it is clear that an actionable wrong has been established. There is no error, and the judgment in plaintiff’s favor must be affirmed. No error.