Goldstein v. Atlantic Coast Line Railroad

*169 Brogden, J. The plaintiff bases ber right to recovery upon the following elements of negligence: 1. That tbe railroad company failed to provide a watchman or signaling device at the crossing. 2. That the company, in violation of the ordinance of the city of Wilmington, permitted a gondola car to remain over the crossing more than three minutes. There was some contention about the failure of the railroad company to maintain a stop sign at the crossing, but there is no specific allegation in the complaint alleging the absence of a stop sign as an element of negligence. The evidence disclosed that no regular train was operated at this point and that no shifting was done at regular intervals. The highway was straight and there is no evidence of such obstruction as to require, as a matter of law, the maintenance of watchmen or signaling-devices. Upon this aspect the case falls within the line designated and marked out in Slier v. R. R., 200 N. C., 527, 157 S. E., 800. See, also, Batchelor v. R. R., 196 N. C., 84, 144 S. E., 542. The effectiveness of the contention that the railroad company was violating the ordinance of the city of Wilmington must be determined by the answer to two preliminary questions. 1. Did the accident happen within the corporate limits of the city of Wilmington ? 2. Was there any competent evidence that the flat car or gondola car had remained across the highway more than three minutes ? The only evidence relating to the locus of the collision is the testimony of City Engineer Maffitt, who said: “Mr. Sinclair understood me to say the accident took place inside of the city. I said: ‘I do not see how it could have taken place inside of the city because the evidence showed the accident occurred on the opposite side of the city.’ ” The burden was upon the plaintiff to offer evidence tending to show that the collision took place within the city limits, and therefore subject to the restrictions contained in the ordinance. It is obvious that the evidence relied upon fails to show that the accident happened within the city limits. Indeed, it tends to show the contrary. The ordinance by express language applies to “any street within the city,” etc. However, if it be conceded that the ordinance applied to a portion of a street within the city and that the point of collision was partially within the city limits, then in such event the law imposed upon the plaintiff the burden of offering evidence that the crossing had been blocked more than three minutes. The only witnesses offering testimony as to the length of time the crossing had been blocked, were in the house with the doors closed until the crash. They do not undertake to say, as a matter of fact, how long the crossing had been blocked, but they do give certain *170 conclusions which, they drew from the noise and operation of the train in the vicinity. This is not sufficient to meet the burden east by the law upon the complaining party. The plaintiff excepts to the exclusion of certain evidence to the effect that it was a custom of the railroad company to place a watchman at the crossing when it was blocked. The exclusion of the testimony was proper. The evidence of custom was insufficient in character and probative quality; notwithstanding even if it be conceded that there was competent evidence of custom, there is no evidence that the driver of the car or the plaintiff either knew of or relied upon its existence. Penland v. Ingle, 138 N. C., 456, 50 S. E., 850; Crown Co. v. Jones, 196 N. C., 208, 145 S. E., 5; McLellan v. R. R., 155 N. C., 1, 70 S. E., 1066. Affirmed. OlabicsoN, J., dissents.