Finch v. North Carolina Railroad

’ ClaRKsoN, J". Tbe defendant introduced no evidence, and at tbe close of plaintiff’s evidence made a motion for judgment as in case of nonsuit (C. S., 567), which motion tbe court below overruled. In this we think there was no error. On motion for nonsuit tbe evidence is to be taken in the light most favorable to plaintiff, and be is entitled to tbe benefit of every reasonable intendment upon tbe evidence and every reasonable inference to be drawn therefrom. Tbe court below charged tbe jury clearly and accurately tbe law in regard to tbe burden of proof, negligence, proximate cause and contributory negligence. Tbe court charged: “Tbat both tbe railroad in approaching a public crossing and tbe traveler on tbe highway, are charged with" mutual duty of keeping a careful lookout for danger, and tbe degree of diligence to be used on either side is such as a prudent man would exercise under tbe circumstances of tbe case in endeavoring to perform bis duty. Our Supreme Court has laid down certain other rules of conduct of travelers in approaching railroad crossings, which rules tbe Court gives you for your guidance in determining and passing upon this action. A traveler on tbe highway, before crossing a railroad track, as a general rule, is *198 required to look and listen, and to ascertain whether a train is approaching; and the mere omission of the trainman to give the ordinary or statutory signals will not relieve him of this duty. Where the view is unobstructed, a traveled who attempts to cross a railroad track under ordinary and usual conditions without first looking, when by doing so he could note the approach of a train in time to save himself by reasonable effort, is guilty of contributory negligence. Where the view is obstructed a traveler may ordinarily rely upon his sense of hearing, and if he does listen and is induced to enter on a public crossing, because of the negligent failure of the company to give the ordinary signals, this will usually be attributed to the failure of the company to warn the traveler of the danger, and not imputed to him for contributory negligence. There may be certain qualifying facts and conditions which so complicated 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 the traveler enters on the crossing reasonably relying upon the assurance of s'afety. The court further instructs that it is the duty of the employees' of a railroad company to give reasonable and timely notice of the approach of trains to a public crossing by ringing the bell or blowing the whistle of the locomotive when the circumstances demand it. The court further instructs you that in considering the degree of care exercised by defendant, you may consider the speed of the train, the acts of the employees, the nature of the crossing, whether or not there were gates or automatic bells there with other circumstances in the case. The court charges you that it was lawful and proper for the conductor to separate his train so as to cease blocking the crossing, and the mere fact that he separated the train would not constitute negligence; as to whether it would constitute an invitation for deceased to go* upon the crossing is a matter for the jury to decide; it is a matter for you to consider in passing upon the acts of the defendant, and in determining whether or not defendant was negligent. If you find by the greater weight of the testimony that the defendant failed to keep a proper lookout, and failed to exercise a degree of diligence under the circumstances as you find them in this case, such as a prudent man would have exercised, and such failure was the proximate cause of the injury, you will answer the first issue Yes.” This charge embodies the correct principles of law and is fully borne out by decisions of this State. Johnson v. R. R., 163 N. C., 431; Brown v. R. R., 171 N. C., 266; Goff v. R. R., 179 N. C., 216; Dudley v. R. R., 180 N. C., 34; Perry v. R. R., ibid., p. 290; Blum v. R. R., 187 N. C., 640; Rigsbee v. R. R., 190 N. C., 231; Barber v. R. R., 193 N. C., 691. *199 A portion of the above charge contended by defendant not pertinent to the facts in the present action will be hereafter considered. In Harrison v. R. R., 194 N. C., p. 656, the facts were different from the present action. On the question of contributory negligencei the court below' instructed the jury as follows: “The court, gentlemen, instructs you that it is a rule of law 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 or listen for danger, cannot recover for an injury which may have been avoided by looking and listening; but where the view is obstructed or other facts exist which tend to complicate the question of contributory negligence, it becomes one for the jury. These circumstances may involve obstructions on the tracks, several tracks and trains running on them in different directions, and one train is obscured by another. When these facts exist, gentlemen, the issue of contributory negligence is for you to determine under the instructions given you by the court and the facts as you find them. The court further instructs you, gentlemen, that if you should find that the trainmen’s act in cutting the train in two parts, and opening the crossing, would be an- implied invitation for deceased to cross, and that deceased, being familiar with the crossing, he might 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 circumstances 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.” The charge embodies correct principles of law. Barber v. R. R., supra, and cases cited. The serious assignment of error is the refusal of the court below to give the following special instruction, which the defendant prayed the court to give: “I charge you that you cannot consider any contention that the conductor of the freight train was negligent in giving a hand signal to plaintiffs’ testator, signalling him to come upon the crossing at which he was hilled, because no such negligence is alleged and charged in the complaint. You will, therefore, disregard any such contention in passing upon the first issue.” The defendant contends that' “the defendant was absolutely entitled to have this special instruction, to eliminate from the case a contention as to negligence not supported by the complaint. It will be observed that the complaint specifies four distinct elements of alleged negligence: (1) Opening up the crossing at a time when the fast train was approaching; (2) ran No. 37 (Orescent Limited) through the town at a great and dangerous and unnecessary *200 speed; (3) failed to give any signals or warning of its approach to the crossing; (4) failed to have any gates, watchman or other signals at the crossing; but contains no allegation that the freight conductor was careless or negligent in giving an express affirmative signal to plaintiffs’ testator. . . . Accordingly it appears beyond dispute that this second signal was given by the conductor looking straight down the train toward the engine and was plainly and manifestly a signal to the engine crew of the freight train, and was the signal which stopped the movement of the forward part of the freight train. Even if it had been alleged that an express hand signal was negligently given by this conductor to Brown Finch and the others, this proof would not have sustained the allegation. Certainly in the absence of the allegation the court should have expressly eliminated the theory of a negligent express hand signal as an invitation.” We think this prayer should have been given. It is termed in defendant’s brief express invitation by hatnd signal. If there was evidence of an express invitation by hand signal, under the facts and circumstances of this case, the plaintiffs’ testator could have, perhaps, relied on the express invitation. This •express invitation by hand signal was not alleged in the complaint. No amendment to the pleading was requested by plaintiffs. The Superior Court or this Court, in its discretion, had a right to allow the amendment. Deligny v. Furniture Co., 170 N. C., 189. The Deligny case is cited by plaintiffs, but the Court in that case said (at p. 198): “The predominant idea of the present code system is to try the cases on their real merits. It is broad in its scope and amply sufficient, as it now is, to administer justice, in every possible case, without regard to form or technical accuracy, and is sufficient, as it is at present, and even without any amendment, to satisfy the most advanced notions of modern pleadings, and procedure. But we thinlc that the judge has, by the instruction we have quoted, neutralized, if not entirely cut out, all of the defendant’s objections which are based upon its supposed duty to use the metal cleat, and the case need only be further considered upon the other exceptions.” (Italics ours.) In the Deligny case, conceding that no amendment was necessary, or it is in, the discretion of the court to grant or refuse an amendment, it will be noted that the charge of the court neutralized and cut out the objections. In this action the charge was refused, although the) evidence in regard to the hand signal was vague, uncertain and ambiguous, as will hereafter be noted. . How about the facts bearing on the express invitation by hand signal ? The court in its charge, reciting plaintiffs’ contention, said: “The plaintiffs say that on the morning of 28 March, 1925, there was a freight train across the "West End crossing of the Southern Railway in Thomas- *201 ville; that the train was across the crossing about fifteen minutes, and that there were no gates or watchman at the crossing; that while the freight train was standing across the crossing Brown Finch, the deceased, drove up in a Buick sedan and stopped, waiting at the crossing with others for a few minutes; that he ' drove up alongside a truck loaded with chairs, and that he stopped his car about eight feet from the track; that a member of the train crew uncoupled the cars and cut the train in two; that part of the train passed across the crossing, trainmen following it; that trainman signalled; that signal understood to mean to cross; that deceased, Williams and Kennedy started to cross, and that car driven by deceased wag struck, knocked against the side of the freight train, demolished and deceased was -killed.” In the charge heretofore quoted, the court below said: “There may be certain qualifying facts and conditions which so complicated the question of contributory negligence that it becomes one for the jury, even though there has been a failure to looh 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 the traveler enters on the crossing reasonably relying on the assurance of safety.” Although a correct principle of law, was it pertinent to the facts in this action ? The exceptional instances, “signals given by a watchman.” It is undisputed on the record that the street crossing had. no gates or watchman. The signal in the charge which the court mentioned which would relieve plaintiffs’ testator of, the duty altogether to look or listen if a signal at all was given, it was contended by plaintiffs to have been given by the trainman (conductor). This attitude of the charge practically left it to the jury to say that if the trainman (conductor) signalled, that signal was understood to mean to cross, and plaintiffs’ testate reasonably relying upon the assurance of safety need not look or listen. In other words, the signal relied on by plaintiffs’ testate was negligence and the contributory negligence issue was immaterial. When the court charged on the attitude of the trainman’s (conductor) act in cutting the train in two parts, it charged: “The extent to which a traveler may rely on such circumstances 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.” This is a correct statement under the Barber case, supra. But what is the evidence “that trainman signalled, that signal was understood to mean to cross.” Plaintiffs’ witness, Williams, testified: *202 "Finch’s car was entirely closed, neither of us could hear the other. . . . The trainman followed the train across the crossing, walked slowly behind the train, and on the side of the track, and when the train cleared the crossing the trainman gave a different signal from the one he gave when the train moved to clear the track. . . (On cross-examination) s The conductor of the freight train signalled the engineer forward and made several signals before they got the cars uncoupled. The conductor moved along with the moving train at the end of the last car and on the same side of the train that I was on. I think he walked at the end of the train and had his hand on the rear of the car until the train stopped. I do not know the stop signal, but the conductor made a signal. I cannot say whether "or not it was the customary signal for stopping. The conductor was looking forward towards the engine until the train stopped, and he was looking in that same direction when he gave the signals.” The witness, Kennedy, testified: “The trainman then flagged the engineer of the freight train, and the engineer| loosened the train and pulled a part of it across the crossing. The last time I saw the conductor he was standing! there doing this (here witness indicates a signal). I took it that we could go across. ... I did not see the conductor give the engineer the signal to pull forward, but I did see him give a signal after the cars started moving. This is the signal to which I referred in my direct examination. When this conductor was giving this signal he was looking.; right up the train towards the engineer. I do not know what this signal was, whether it was a stop signal or not, hut I recall that I have seen exactly the same signal given in the switch yard when cars were shifting.” The evidence in relation to the trainman’s (conductor) signal, was to say the least vague, uncertain and ambiguous. Then again, did plaintiffs’ testate see the signal and rely on it? The evidence was that his car was entirely closed. There was' no allegation in the complaint that plaintiffs’ testate relied on an express invitation by hand signal for plaintiffs’ testate to cross. The evidence tends strongly to show that the signal was given to the engineer and not to plaintiffs’ testate; at any rate the evidence of such a signal was vague, uncertain and ambiguous, and there is no evidence that plaintiffs’ testate saw it or was misled by it, There are other exceptions on the record not necessary to be considered. From a careful review of the whole record we think the prayer for instruction should have been given and the refusal, under the facts and circumstances of this case, prejudicial and reversible error. For the reasons given there must be a New trial.