Summerlin v. Atlantic Coast Line Railroad

PARKER, J. The plaintiff has offered plenary evidence of actionable negligence on the part of the defendant. Edwards v. R. R., 129 N.C. 18, 39 S.E. 730; Goff v. R. R., 179 N.C. 216, 102 S.E. 320; Earwood v. R. R., 192 N.C. 27, 133 S.E. 180; Quinn v. R. R., 213 N.C. 48, 195 S.E. 85; Miller, Admr. v. Union Pac. R. R. Co., 290 U.S. 227, 78 L. Ed. 285. However, the plaintiff according to her own evidence is guilty of contributory negligence, which bars her recovery. Her negligence need not be the sole proximate cause of her injury. It is enough if it, concurring with the negligence of the defendant, proximately contributes to her injury. It is the prevailing rule of practice to enter judgment of nonsuit when it appears from the evidence offered on behalf of the plaintiff that she has been guilty of contributory negligence. Bailey v. R. R., 223 N.C. 244, 25 S.E. 2d 833, where the cases are cited; Stevens v. R. R., 237 N.C. 412, 75 S.E. 2d 232. In Stevens v. R. R., supra, this Court said in March last “decisions of this Court uniformly hold that ‘a railroad crossing is itself a notice of danger, and all persons approaching it are bound to [441] exercise care and prudence, and when the conditions are such that a diligent use of the senses would have avoided an injury, a failure to use them constitutes contributory negligence and will be so declared by this Court,’ as stated by Brown, J., in Coleman v. R. R., 153 N.C. 322, 69 S.E. 251.” The plaintiff had the right to expect timely warning by bell or whistle, or, if dark, to expect a headlight on the engine, but the failure to give such signal or warning, or to have a headlight on would not justify her in relying upon such failure, or in assuming that no train was approaching. It is still her duty to keep a proper lookout. Godwin v. R. R., 220 N.C. 281, 17 S.E. 2d 137; Stevens v. R. R., supra; Dowdy v. R. R., 237 N.C. 519, 75 S.E. 2d 639. When the plaintiff stopped on West College Street near its intersection with West Center Street, it was not dark; it was approaching darkness. She stopped ahead of a little brick building on the southwest corner of Center and College Streets. From the western rail of the railroad track to the door of this building is 56 feet. Where she stopped, there was nothing to obstruct her view to the south, from which the train was approaching. She looked north and south, and saw no train. She put her automobile in motion, and without looking again she crossed West Center Street 35% feet wide, the parking strip 6% feet wide, 6% feet between the east curb of West Center Street and the track, and onto the track where she was hit by the train. If, during the time she was crossing this 48% feet, she had looked to the south, she could have seen the approaching train, stopped her car, and avoided her serious injuries. She was thoroughly familiar with the crossing. Her failure to exercise proper care and prudence under such circumstances constitutes contributory negligence. Godwin v. R. R., 202 N.C. 1, 161 S.E. 541; Parker v. R. R., 232 N.C. 472, 61 S.E. 2d 370; Dowdy v. R. R., supra, p. 524, where cases are cited showing how far the plaintiff stopped from the track before entering upon it, and then drove on the track without looking again. The plaintiff relies heavily upon Osborne v. R. R., 160 N.C. 309, 76 S.E. 16; Johnson v. R. R., 163 N.C. 431, 79 S.E. 690; Goff v. R. R., supra. The facts are distinguishable, for in those cases the view of the traveler going upon the railroad track was obstructed. The plaintiff also relies upon Meacham v. R. R., 213 N.C. 609, 197 S.E. 189; and Caldwell v. R. R., 218 N.C. 63, 10 S.E. 2d 680. Those cases are not in point for in each one there was evidence to show low visibility from fog or mist. The judgment of nonsuit entered in the lower court was correct, and is Affirmed.