Caldwell v. Southern Railway Co.

DeviN, J. 1. Defendant’s motion for judgment of nonsuit, on tbe ground that plaintiff’s evidence conclusively showed contributory negligence on his part, was properly denied. From a careful consideration of the evidence in the record before us, viewed in the light most favorable to the plaintiff in accord with the accepted rule on motions of this kind, we are led to the conclusion that it was a case for the jury. Meacham v. R. R., 213 N. C., 609, 197 S. E., 189; Quinn v. R. R., 213 N. C., 48, 195 S. E., 85; Cole v. Koonce, 214 N. C., 188, 198 S. E., 637; Williams v. Express Lines, 198 N. C., 193, 151 S. E., 197; Johnson v. R. R., 214 N. C., 484, 199 S. E., 704; Coltrain v. R. R., 216 N. C., 263. 2. The defendants assign as error the ruling of the court below in sustaining plaintiff’s objection to the testimony of two witnesses as to the result of observations made by them at the Lee Street crossing nearly two years after the injury. One of these witnesses would have testified that at the time of his observation, when the weather conditions were “cloudy but not raining,” the headlight of a locomotive coming from the west to the Lee Street crossing could be seen for a distance of 350 feet from a point midway between tracks 5 and 6. The other witness would have testified at the time of his observation, when the weather conditions were “kind of misty,” the headlight was visible 80 to 100 feet from the same point. Ordinarily, testimony of witnesses as to observations, under circumstances like those about which testimony has been given, would be considered competent. S. v. Holland, 216 N. C., 610. But here it appears that there was a material difference in the atmospheric conditions at the time these witnesses made their observations, in 1939, from the fog which plaintiff testified obscured his vision on the night of the injury in 1937. And it further appears that other witnesses, without objection, had testified to substantially the same effect as that proposed to be offered by these witnesses. There were surveys, maps, photographs and the testimony of several witnesses as to the location and surroundings. The exception to the ruling of the trial judge in excluding the testimony of the two witnesses may not be held for error. Conrad v. Shuford, 174 N. C., 719, 94 S. E., 424; Cook v. Mebane, 191 N. C., 1, 131 S. E., 407; Willis v. New Bern, 191 N. C., 507, 132 S. E., 286; Wolfe v. Smith, 215 N. C., 286, 1 S. E. (2d), 815; Brown v. Montgomery Ward & Co., 217 N. C., 368; S. v. Elder, 217 N. C., 111; Wigmore on Ev. (2nd Ed.), sec. 442. 3. Defendants assign as error the admission by the trial court of evidence tending to show that the railroad crossing on Lee Street was [69] peculiarly and unusually hazardous to travelers, and they except to the. action of the court in submitting to the jury the question whether under all the circumstances this crossing was unusually hazardous, so as to require the railway company, in the exercise of due care, to erect gates, maintain a flagman, or provide other warning devices at the crossing to avoid injury to those traversing it. It is apparent that under the allegations in the complaint, and the testimony offered in support thereof, there was no error in submitting to the jury the evidence pertaining to this alleged element of negligent omission of duty on the part of the defendant railway company. Dudley v. R. R., 180 N. C., 34, 103 S. E., 905; Blum v. R. R., 187 N. C., 640, 122 S. E., 562; Batchelor v. R. R., 196 N. C., 84, 144 S. E, 542; Moseley v. R. R., 197 N. C., 628, 150 S. E., 184; Eller v. R. R., 200 N. C., 527, 157 S. E., 800; Nash v. R. R., 202 N. C., 30, 161 S. E., 857; Harper v. R. R. 211 N. C., 398, 190 S. E., 750; White v. R. R., 216 N. C., 79. It is well settled that where a railroad track crosses, at the same level, a public road or street, the law imposes upon the operator of the railroad the duty to give reasonable and timely warning of the approach of a train to the crossing. Ordinarily, at a grade crossing where no unusually dangerous or hazardous conditions exist, timely signals by sounding the bell or blowing the whistle are deemed adequate. But where there are circumstances of more than ordinary danger and where the surroundings are such as to render the crossing peculiarly and unusually hazardous to those who have a right to traverse it, a question of fact is raised for the determination of the jury whether under the circumstances the operator of the railroad has exercised due care in providing reasonable protection for those who use the crossing, and whether the degree of care which the operator of the railroad is required to exercise to avoid injury at grade crossings imposes the duty to provide safety devices at the crossing. It was said in R. R. v. Ives, 144 U. S., 408, quoted in Batchelor v. R. R., 196 N. C., 84: “It seems, however, that before a jury will be warranted in saying, in the absence of any statutory direction to that effect, that a railroad company should keep a flagman or gates at a crossing, it must be first sho'wn that such crossing is more than ordinarily hazardous; as, for instance, that it is a thickly populated portion of a town or city; or, that the view of the track is obstructed either by the company itself or by other objects proper in themselves; or, that the crossing is a much traveled one and the noise of approaching trains is rendered indistinct and the ordinary signals difficult to be heard by reason of bustle and confusion incident to railway or other business; or, by reason of some such like cause.” It is a question of due care under the circumstances. The railroad company must use such reasonable care and precaution as ordinary [70] prudence would indicate. R. R. v. Kuhn, 86 Ky., 578; 22 R. C. L., 990. Where the conditions existing at or about the crossing are such as to render the crossing dangerous and hazardous to the traveling public and tend to render the sounding of whistle or bell on the engine inadequate, evidence of such conditions is admissible to aid the jury in determining whether under all the circumstances the railroad company has exercised due care in giving reasonable and timely warning of the approach of the train, and it becomes a question for the jury whether the degree of care which the railroad company is required to exercise to avoid injuries at crossings imposes the duty to provide additional safety devices. Moseley v. R. R., supra, 60 A. L. R., 1096. In Moseley v. R. R., supra, it was said: “Where the evidence shows a railroad crossing is for any reason peculiarly dangerous, it is a question for the jury whether the degree of care which a railroad company is required to exercise to avoid accidents at crossings imposes on the company the duty to provide safety devices at the crossing.” Upon this phase of the case the trial judge instructed the jury as follows: “Where a railroad crossing is not peculiarly and unusually dangerous, the exercise of due care on the part of the railroad company does not require it to provide gates, signal devices, watchman, or other such safety methods. However, the exercise of due care on the part of the railroad company may require the erection of gates or signal device or the maintenance of a watchman where the crossing is unusually and peculiarly hazardous. It is for the jury to say whether the crossing in question was, under all the circumstances, peculiarly and unusually hazardous so as to require the railroad in the exercise of due care to erect gates or signal devices or maintain a flagman or such other means of warning and safety. If it should appear that a crossing is a much-used one and situated in a populous area, those facts standing alone are not sufficient to constitute such crossing peculiarly and unusually hazardous so as to require the railroad, in the exercise of due care, to provide gates or signal devices or a watchman or such other means of warning. However, peculiar and particular hazard may arise where the crossing is in a populous community, where it is much used, where there are conditions such as to obstruct the traveler’s view as he approaches and enters upon the crossing, where there is noise and confusion and other conditions reasonably calculated to distract the traveler’s attention and prevent him from seeing and hearing an approaching train.” After stating the evidence pertaining to this phase of the case, and arraying the contentions of both plaintiff and defendants thereon, the court charged the jury as follows: “The court charges you that if the plaintiff has satisfied you by the greater weight of the evidence, the burden being upon the plaintiff, that the crossing in question, referred [71] to as North Lee Street crossing, was peculiarly and unusually hazardous, and that the railway company failed to provide gates or signal devices or a flagman or other such means of warning, then the court charges you that such failure on the part of the defendant railway company would constitute negligence, and if you further find from the evidence and by its greater weight that such negligence was the proximate cause of the plaintiff's injury and damage, it would be your duty to answer the first issue, yes.” ... The defendants excepted to that portion of the charge last quoted. In their brief they challenge the correctness of this instruction on the ground that there was no evidence that the crossing' was peculiarly hazardous, so as to justify the submission to the jury of the question of absence of gates, or flagman as an element of negligence. It is apparent that the reason assigned in the brief for bringing forward this exception is insufficient and not borne out by the evidence. Hence, consideration of other aspects of this excerpt from the charge might be deemed not required on this record. (Supreme Court Buies 28 and 27%.) However, appellants' exception duly noted should doubtless warrant us in examining the instruction further, and taking note of the omission of reference to due care in the sentence objected to. This clause standing alone would be erroneous, in that it would seem to imply that, upon proof of the unusual hazard of a crossing, the failure to provide gates, signal devices or flagman would itself constitute negligence upon the part of the railroad company, rather than furnishing evidence from which the jury might find the railway company had failed to exercise due care with respect to the use of reasonable and timely warning devices. R. R. v. Perkins, 125 Ill., 127; R. R. v. Ives, supra. But an examination of the entire charge on this point in which the correct rule was repeatedly stated, in connection with other portions of a clear and accurate charge on the law of negligence and contributory negligence applicable to the evidence in this case, leads us to the conclusion that the jury was not misled or the defendants in any way prejudiced thereby. The appellants in their brief do not contend that the result was influenced by the omission herein pointed out. The point of their objection is that the judge erred in referring to the matter at all, rather than in any omission in the language in which his instructions were couched. An appellate court, by careful examination, may not infrequently find errors in language used or omitted by the trial judge in his instructions to the jury upon issues of fact, but in accord with a less technical and more liberal conception of the power to review, the court may also, upon due consideration of all the circumstances surrounding the trial and in the light of the matter under investigation, perceive that the errors com [72] plained of neither misled the jury nor affected the impartiality of the trial. “Verdicts and judgments are not to be set aside for harmless error, or for mere error and no more. To accomplish this result, it must be made to appear not only that the ruling complained of is erroneous, but also that it is material and prejudicial, amounting to a denial of some substantial right.” Wilson v. Lumber Co., 186 N. C., 56, 118 S. E., 797; Collins v. Lamb, 215 N. C., 719, 2 S. E. (2d), 863. 4. We have examined the other exceptions noted and find in them no prejudicial error. The defendants’ requests for instructions, embodying applicable principles of law, were substantially given in the general charge on the law of negligence and contributory negligence. Carter v. R. R., 165 N. C., 244, 81 S. E., 321. Those containing requests for peremptory instructions were properly refused. The request that the court instruct the jury to answer the issue of contributory negligence in favor of defendants, unless the jury found the vision of plaintiff was obstructed by fog or mist, ignored the relevancy of the testimony of plaintiff as to other obstructions. The exception to the exclusion of the proffered testimony of a witness as to the contents of his weather report for 7 December, 1937, cannot be sustained. The weather report was admitted in evidence and the witness testified the weather on the 7th and 8th was clear. After a careful examination of the record in this case, we conclude that the issues of fact raised by the pleadings were fairly submitted to the jury, and that in the trial there was no error which should warrant us in setting aside the verdict and judgment of the Superior Court. No error.