Perry v. Norfolk Southern Railroad

Allen, J. The principles announced in Goff v. R. R., 179 N. C., 219, fully sustain the ruling of his Honor in refusing to enter judgment of nonsuit. It was there held that it was the duty of the defendant to give reasonable and timely notice of the approach of its train to a public crossing by ringing the bell or blowing' the whistle, or by doing both when peculiar conditions demanded; that a failure to do so is negligence, and that the evidence of witnesses nearby who testify that they do not hear the ringing of the bell or the blowing of the whistle, is evidence that no such signal was given. [295] We also approved in that ease the following principle as to the duty of the traveler as he approaches the crossing, laid down in Johnson v. R. R., 163 N. C., 443: “4. On reaching a railroad crossing, and before attempting to go upon the track, a traveler must use his sense of sight and hearing to the best of his ability under the existing and surrounding circumstances — he must look and listen in both directions for approaching trains, if not prevented from doing so by the fault of the railroad company, and if he has time to do so; and this should be done before he has taken a position exposing him to peril or has come within the zone of danger, this being required so that his precaution may be effective. Cooper v. R. R., 140 N. C., 209; Coleman v. R. R., 153 N. C., 322; Wolfe v. R. R., 154 N. C., 569, in the last of which'cases the rule was applied to an employee charged with the duty of watching a crossing and warning travelers of the approach of trains, and he was required to exercise due care, under the rule of the prudent man, for his own safety by looking and listening for coming trains. “5. The duty of the traveler arising under this rule is not always an absolute one, but may be so qualified by attendant circumstances as to require the issue as to his contributory negligence, by not taking proper measures for his safety, to be submitted to the jury. Sherrill v. R. R.. 140 N. C., 255; Wolfe v. R. R., supra. “6. If he fails to exercise proper care within the rule stated, it is such negligence as will bar his recovery: Provided, ahodys, it is the proximate cause of his injury. Cooper v. R. R., supra; Strickland v. R. R., 150 N. C., 7; Wolfe v. R. R., supra. “1. If his view is obstructed or his hearing an approaching train is prevented, and especially if this is done by the fault of the defendant, and the company’s servants fail to warn him of its approach, and induced by this failure of duty, which has lulled him into security, he attempts to cross the track and is injured, having used his faculties as best he could, under the circumstances, to ascertain if there is any danger ahead, negligence will not be imputed to him, but to the company, its failure to warn him being regarded as the proximate cause of any injury he received. Mesic v. R. R., 120 N. C., 490; Osborne v. R. R., supra." The evidence in this case tends to prove that as the plaintiff approached the crossing his view was obstructed by bushes, which the defendant permitted to grow on its right of way so high and so close to the track that he could not see until he was on the track; that the bell was not rung and the whistle was not blown; that the plaintiff was traveling at from four to five miles an hour; that he looked and listened, and the inference is permissible that if notice of the approach of the [296] train to the crossing had been given that the plaintiff would have heard it and would not have gone on the track, and if so, the jury was justified in finding that the failure to give notice caused the plaintiff to go upon the track and was the proximate cause of his injury. Some authorities impose the further duty on.the plaintiff of stopping before reaching the crossing, while others hold that this cannot be declared as matter of law, but that a failure to do so is a circumstance to be considered on the exercise of ordinary care by the plaintiff. The authorities representing the opposing views are collected in the notes to Wacksmith v. R. R., 1913 B. Anno. Cases, 681, but as the question has been decided by this Court four times in recent years, as applied to collisions between automobiles and trains at public crossings, and a definite conclusion reached without dissent, we do not regard it as needful or helpful to go outside of our own authorities, and reexamine the decisions of other Courts, which we have heretofore fully considered. Shepard v. R. R., 166 N. C., 545, was an action to recover damages to an automobile caused by collision with a train at a crossing, and the question was raised as to the duty of the driver to stop, and the Court said: “It is also established by the 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.” A new trial was ordered because of -an error in the charge, and on a second appeal (169 N. C., 239) the principles declared on the first appeal were not only affirmed, but the Court proceeded a step further and held that the plaintiff could recover although he approached the crossing running in excess of the speed limit prescribed by statute, unless it appeared that the excess of speed was the proximate cause of the collision, and that this was for the jury. Hunt v. R. R., 170 N. C., 444, was an action to recover damages for wrongful death caused by a collision between an automobile and a train at a crossing, in which the Court says: “There was evidence tending to show that the driver of the automobile looked and listened before entering on the crossing, and it is held with us that it is not always, and as a matter of law, required that a vehicle should come to a stop before endeavoring to cross. Shepard v. R. R., 166 N. C., 539, and Elkin v. R. R., 86 S. E., 762.” Brown v. R. R., 171 N. C., 269, is another action to recover damages for injury at a crossing caused by collision between an automobile and [297] ‘a train. Walicer, J., writing the opinion for the Court, reviews tbe authorities, and, among other things, declares: “We held in Shepard v. R. R., 166 N. C., 539, following two of the rules laid down in Cooper v. R. R., 140 N. C., 209, and Johnson v. R. R., 163 N. C., 431, as follows: ‘Where the view is unobstructed, a traveler who attempts to cross a railroad track under ordinary and usual conditions without first looking, when by doing so he could see 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.’ . . . Shepard’s case was again before the Court, and is reported in 169 N. C., 239, where the former decision was approved, and where it was further held that if plaintiff (in that case) was running his automobile at a rate of speed prohibited by the statute (Laws 1913, ch. 107), he was not, as a matter of law, debarred of a recovery, as the question of proximate cause was involved and was for the jury to determine.” And again, referring to Shepard’s case: “In that case, at p. 545, the Court said: ‘It is also established by the 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.’ ” These three cases of Shepard v. R. R., Hunt v. R. R., and Brown v. R. R. are cited and approved in Dail v. R. R., 176 N. C., 112, on the point that failure to stop before crossing a railroad track cannot be declared to be contributory negligence as matter of law, but that it should be considered by the jury in connection with the surrounding circumstances in determining _wh.eth.er the party was exercising the care of one of ordinary prudence. The authorities favoring this view proceed upon the idea that the traveler has the right to rely upon the performance of its duty by the defendant, and that when he looks and listens and neither sees nor hears a train, he has the right to act upon the presumption that none is approaching. Also that while a failure to stop should be considered in -connection with the other circumstances, it is not conclusive of negligence on the part of the plaintiff. The sign placed at the crossing with the warning “Stop, look, and listen” has no other legal effect than to call the attention of the plaintiff [298] to the duty imposed upon Mm by law to exercise ordinary care for Ms own safety. His Honor, however, gave the defendant the benefit of all it was entitled to, as be instructed the jury as follows: “If you shall find that the view down the railroad track was obstructed or restricted, and that the plaintiff could not hear on account of the noise of his automobile, then it was his duty to bring his car tó a stop before entering upon the track, and to stop, look, and listen at a place where doing so would be effective, and if you find that there was a place on the road where the view was sufficiently open for him to have done so and have ascertained the approaching of the train, then his failure to do so was contributory negligence, and you will answer the second issue ‘Tes.’ ” The evidence of the plaintiff that he might have heard the running of the train if he had stopped was submitted to the jury in support of the defendant’s position, and was given the significance to which it was entitled. The notice to which the plaintiff was entitled was not the noise of the moving train, but the blast of the whistle or the ringing of the bell, or both, and while he might have heard the train if he had stopped, it is also true that he might have been halted before he reached the track, with the car running, if the signals required by law had been given, and it could not be said to be contributory negligence as a legal conclusion if the failure to stop was caused by the breach of duty on the part of the defendant in that it failed to give any notice of the approach of its train. Notice by bell or whistle is required, because the noise of the train, which is always present, is not a sufficient protection to life and property, and when the defendant has by its negligence permitted obstructions on its right of way so the traveler cannot see, and has failed to give the proper signal, which prevents him from hearing what he has the right to expect if a train approaches, it ought not to be absolved from the consequences of its negligence, because the traveler, relying on the performance of duty by defendant, might have heard the noise of a train if he had stopped. There are several exceptions to the evidence, which we have examined, and none of them would justify ordering a new trial, nor do the other appeals involve additional questions which require discussion. The case of Hurst v. R. R., which was disposed of by a per curiam, judgment in favor of the defendant, is in some respects like this, but the question on which it was decided was the condition of the crossing and not the failure to give notice of the approach of the train. After careful examination of the record we find No error.