Nash v. Seaboard Air Line Railway Co.

*33 BeogdeN, J. Louise Nash was a gratuitous passenger or guest in the auto-mobile driven by Sarah Adams. She was not the owner of the car and had no control of it; neither is there evidence that the deceased was engaged in a joint enterprise with the driver or other occupants of the car. Consequently, any negligence on the part of the driver would not be imputed to the deceased. In the light of the facts and circumstances disclosed by the present record, the rule of law, therefore, applicable to the'facts was stated in Earwood v. R. R., 192 N. C., 27, as follows: “Therefore, negligence on the part of the driver will not, ordinarily, be imputed to a guest or occupant of an automobile unless such guest or occupant is the owner of the car or has some kind of control of the driver. Of course, if the negligence of the driver is the sole, only, proximate cause of the injury, the injured party could not recover. This rule is not based upon the idea of contributory negligence on the part of the injured party but rather upon the idea that the party causing the injury was not guilty of any negligence, which was the proximate cause thereof.” All occupants of the car who remained therein, escaped without injury, and undoubtedly the deceased would also have escaped if she had not either jumped or been thrown from the car immediately in front of the engine. This act, however, does not bar recovery. Discussing a similar situation in Odom v. R. R., 193 N. C., 442, 137 S. E., 313, the Court said: “The mere fact that a person jumps from a vehicle in which he is traveling, where there is imminent danger of its coming in collision with an approaching train at a crossing, does not bar recovery against the. railroad corporation, although it appears that he made a mistake and would have escaped injury had he remained quiet.” Hence the determining question of law is whether there is evidence of negligence on the part of defendant. There is evidence that no signal was given by the approaching train. There is evidence that the crossing was obstructed by a loading platform and trees upon the right of way. There is evidence that in the open space adjacent to the right of way automobiles were parked. There is evidence that the vision of an approaching traveler was thereby obscured until within ten or twenty feet of the track. Of course, the engine and box cars were higher than the parked automobiles or the loading platform near the crossing, and consequently the top of the engine and box cars was visible. Manifestly, however, there was partial obstruction or interference with vision. The evidence of plaintiff and the inferences which such evidence warrants, classify this ease in the line of decisions represented by Moseley v. R. R., 197 N. C., 628, 150 S. E., 184; Thurston v. R. R., 199 N. C., 496, 154 S. E., 836, and Butner v. R. R., 199 N. C., 695, 155 S. E., 601. Particularly in view of the fact that the deceased was a guest in the car at the time of the collision. *34 There are many other exceptions in the record which have been carefully examined, but the court is of the opinion that there was sufficient evidence of negligence to be submitted to the jury and that the issue has been tried in accordance with the rules of liability heretofore established. No error.