Shepard v. Norfolk & Southern Railroad

Hoke, J., after stating tbe case: In Cooper v. R. R., 140 N. C., 209, tbe Court laid down certain rules as to tbe conduct of travelers approacbing a railroad crossing, in terms as follows:. “A traveler on tbe highway, before crossing a railroad track, as a general rule, is required to look and listen to ascertain whether a train is approacbing; and tbe mere omission of tbe trainmen to give tbe ordinary or statutory signals will not relieve him of this duty. “5. Where tbe view is unobstructed, a traveler who attempts to cross a railroad track under ordinary and usual conditions without first looking, when by doing so be could note tbe approach of a train in time to save himself by reasonable effort, is guilty of contributory negligence. • “6. Where tbe view is obstructed, a traveler may ordinarily rely upon bis sense of bearing, and if be does listen and is induced to enter on a public crossing because of tbe negligent failure of tbe company to give tbe ordinary signals, this will usually be attributed to tbe failure of tbe company to warn tbe traveler of tbe danger, and not imputed to him for contributory negligence. “1. There may be certain qualifying facts and conditions which so complicate the question of contributory negligence that it becomes one for -the jury, even though there has been a failure to look or listen, and a traveler may, in exceptional instances, be relieved of these duties altogether, as when gates are open or signals given by a watchman and tbe traveler enters on tbe crossing reasonably relying'upon tbe assurance of safety.” ■ These rules and the one last mentioned as being more particularly applicable to tbe questions presented on 'this appeal have been frequently upheld and applied in decisions of our Court, *545 notably in tbe recent cases of Johnston v. R. R., 163 N. C., 431; Fann v. R. R., 155 N. C., 136; Wolfe v. R. R., 154 N. C., 569; Farris v. R. R., 151 N. C., 483. It is also establisbed by tbe weight of authority that it is not always imperative on a traveler to come to a complete stop before entering on a railroad crossing; but “whether he must stop, in addition to looking and listening, depends upon the facts and circumstances of each particular case, and so is usually a question for the jury.” Alexander v. R. R., 112 N. C., 720; Judson v. R. R., 158 N. Y., 597; Malott v. Hawkins, 159 Ind., pp. 127-134; 3 Elliott on Railroads (2 Ed.), sec. 1095, Note 147; 33 Cyc., pp. 1010, 1011-1020. In Alexander’s case it was held, among other things: “Where, in an action for damages for an injury received at a railroad crossing, plaintiff testified that she ‘held up very slow’ as she was driving across, and, hearing no bell, which she had heard the day before while at the crossing, notwithstanding the noise of the factories on each side of the street, concluded that no engine was approaching, and drove on: Held, that it was not necessary for her to get out of her buggy and go beyond the cars to look up and down the track, or to stop and listen for an approaching engine when no signal was givén of its approach.” In Judson’s case, supra: “A person approaching a railroad crossing is not required, as a matter of law, to stop before attempting to cross, but his omission to do so is a fact for the consideration of the jury.” In Malott’s case, 159 Ind., supra, Gellett, J., delivering the opinion, said: “Exceptional circumstances may also require him to stop, although this proposition generally presents itself as a mixed question of law and fact.” And in this connection it is further held that the presence or absence of signal warnings or other precautionary measures usually observed by the company at a given crossing is always relevant, and must be given due weight in deciding as to whether the traveler has been observant of proper care before entering on the crossing and in failing to come to a complete stop. In 33 Cyc., at page 1028, the author, speaking to this question, says: “Where a railroad *546 company maintains a flagman, gates, or other signals of warning at a railroad crossing, whether voluntarily or by law or custom, the public generally has a right to presume that these safeguards will be reasonably maintained and attended, and in the absence of knowledge to the contrary the fact that the gates are open, or automatic bells not ringing, or that the flagman is absent from his post ‘or, if present, is not giving a warning of danger, is an assurance of safety and an implied invitation to cross upon which a traveler familiar with the crossing may rely and act within reasonable limits, on the presumption that it is safe for him to go on the crossing. The extent to which a traveler may rely on such assurance is a question of fact, and while ordinarily the same degree of care and vigilance is not required of a traveler under such circumstances as otherwise, he has no right to rely exclusively upon such circumstances, nor will such presumption or assurance excuse the traveler from using every reasonable precaution that an ordinarily prudent man would use under like circumstances. Such facts as the absence or presence of a flagman, or that the gates are open, or that the automatic bells are ringing or not ringing, are merely facts to be considered in determining whether the traveler exercises the degree of care required in attempting to cross.” Applying these principles, we must hold that on the facts in evidence there was error in the charge of his Honor on the issue as to contributory negligence. From the evidence of plaintiff, and construing the same in the light most favorable to him — the accepted rule when a nonsuit is ordered or the judge practically determines the issue as a question of law — it appears that plaintiff with his wife and son and two guests in his automobile, at 10 :30 p. m., approached the crossing along Church Street; that knowing it was, a dangerous crossing, a view of the railroad being obstructed by the positions of buildings along Church Street, he slowed down “to the lowest speed it could be brought* without stopping, and listened attentively for the noise of a train; that he was aware of the regulations about this crossing requiring trains to stop 50 feet before entering on same, and, in the nighttime and in case the train was backing, to send a man. forward *547 with a lantern; that he kept a continuous outlook for the signal, and, hearing no train and seeing no man with a light, he did not consider it necessary to come to a complete stop, and in the endeavor to cross the collision occurred. This regulation, by fair interpretation, does not contemplate that in the night-time the man should go forward with a lantern, give a signal, and then retire. The language of the regulation adopted,, with the consent of the railroad, is “that said cars and engine shall remain standing until a man is sent forward to said street, ahead of same, to see that no one is approaching; such man, at night, to carry a lantern as a signal. No cars or engines shall be moved across said street until signaled to do so by the man sent ahead as. above required”; and the meaning and purpose is that the man with the lantern shall remain upon the crossing with his lighted lantern to afford proper warning that cars are approaching and do what is reasonably required to prevent a collision. On careful perusal of the record, we are of opinion that the issue of contributory negligence must be referred to the decision of the jury on the question whether, on the entire facts and circumstances as the jury may find them to be, the plaintiff was in the exercise of reasonable care at the time in entering on the crossing without having come to a full stop. For the error indicated, the verdict will be set aside and there will be a new trial of all the issues. Venire do novo.