Moss ex rel. Moss v. Southern Railway Co.

Mallard, C.J. At the outset it should be noted that there is nothing before us with respect to the plaintiff’s case against the engineer, J. A. Beal. There appears, beginning on page 16 of the record on appeal, what is entitled, “Statement of Case on Appeal,” which seems to be an introductory statement or summary of the case. In this it is as [55] serted that Judge Harry C. Martin at the February 11, 1967 Session of Wake County Superior Court rendered the judgment appealed from herein. All the remainder of the record on appeal indicates that the hearing was before Judge Robert M, Martin at the February 1968 Civil Session of Wake County Superior Court and that he signed the judgment. Also, the statement appears therein that the defendant “alleged that the plaintiff was herself contributorily negligent, as set forth in the answer.” From reading the appellee’s brief and a motion filed in this Court by appellant to amend its answer, the question of whether defendant alleged contributory negligence on the part of the plaintiff appears now to be controverted. This contradicts the stipulation. This introductory statement or summary called “Statement of Case on Appeal” is not an essential part of the record on appeal. For what the record on appeal should contain, see Rule 19(a) of the Rules of Practice in the Court of Appeals. If this “Statement of Case on Appeal” was in the brief of appellant, it would give us no difficulty. But when counsel for appellant and appellee stipulate and agree, as appears on the last page of the record on appeal, “that the foregoing shall constitute the statement oj case on appeal in this action,” (meaning as we construe it that the foregoing constitutes the record on appeal), and then take different-positions with respect to portions of the stipulated record on appeal, it becomes difficult to determine the true facts. Defendant contends that its motions for nonsuit should have been allowed at the close of the evidence. In view of the summary of the evidence by Justice Higgins in the opinion of the Supreme Court in this case, as hereinabove set out, and in view of the holding herein ordering a new trial, we deem it unnecessary to recapitulate or summarize the evidence. We are of the opinion that there was ample evidence of actionable negligence, resulting in injury to plaintiff to withstand the motion for judgment as of nonsuit. Coltrain v. R. R., 216 N.C. 263, 4 S.E. 2d 853. The defendant contends, and we agree, that the court committed error in its instructions with respect to the effect of weeds and bushes upon its right of way. The court charged the jury that: “I instruct you that it is negligence for a railroad company to allow weeds and bushes to grow upon its right-of-way and along its track to a height which would obstruct the view of a traveler upon a roadway intersecting and crossing the railroad, so as to prevent, by the growth and height of such weeds and bushes, the view of a traveler from having a reasonable opportunity to see the approaching train. . . . [56] So, as to the first issue, I charge and instruct you that if the plaintiff has fulfilled the responsibility cast upon her by the law to the extent that the evidence, by its quality and convincing power, has satisfied you by its greater weight, that at the time and place complained of the defendant Southern Railroad Company was negligent, either in that it failed to cut a growth of weeds and bushes upon its right-of-way and along its tracks, which growth obstructed the view of the plaintiff and prevented her from seeing the approaching train; or . . . (I)f the plaintiff has proven any of those things and proven by the greater weight of the evidence that the negligence of the defendant railroad company in any one or more of these regards not only exists, but that such negligence was one of the proximate causes of the collision, injury and damages, then it would be your duty to answer this first issue in the plaintiff’s favor, axrd that is ‘yes.’ ” The error in the above instruction, which relates to the first issue, is that the jury was permitted to find the defendant negligent upon the sole basis of a finding that the defendant allowed the view at the crossing to be obstructed. A jury could find that where the view at a crossing was obstructed such would not constitute negligence if the jury should find that the railroad company gave adequate warning of the approach of the train. In May v. R. R., 259 N.C. 43, 129 S.E. 2d 624, it is stated: “If obstructions made a blind crossing, they were a vital factor in determining the duty which defendants owed her as well as in determining whether intestate herself was guilty of contributory negligence in going upon the tracks. However, ‘(o)bstructions in themselves have never been considered negligent, . . . but if they exist, and the railroad is aware of them, it is then incumbent on the railroad to take proper precautions to protect travelers who use the crossing and to warn them of the approach of trains.’ Parrish v. R. R., 221 N.C. 292, 20 S.E. 2d 299; Coltrain v. R. R., 216 N.C. 263, 4 S.E. 2d 853. “Permitting such obstacles on the right of way and near the crossing would not in itself constitute actionable negligence, and independently would not give rise to a cause of action. Childress v. Lake Erie & W. R. Co., 182 Ind. 251, 105 N.E. 467. The cause of action depends upon whether or not the train crew gave the warning and took the precautions which an unusually dangerous crossing required.” [57] The appellant contends, and we agree, that the court committed error in failing to instruct the jury that any award on account of damages which plaintiff might sustain in the future should be limited to the present cash value of such loss or damage. In this connection the court should have, but did not, instruct the jury in substance that for any future suffering or damages or decreased earning power they should decrease any award they might make for such down to its present cash value, upon the theory that a dollar to be paid now for something that will occur in the future is worth more than if paid later, and for them to award on that phase of the case, if they award anything on that phase of the case, the present cash value of any future loss they find she may sustain. Faison v. Cribb, 241 N.C. 303, 85 S.E. 2d 139. We do not decide the question whether the defendant’s further answer alleges contributory negligence. The case was first tried on the assumption that such was alleged. The defendant has made a motion in this Court to be permitted to amend its answer by adding in paragraph six of the Further Answer at the end of line five and before the words “in the following respects” (R p 11) the following: “but if the defendant Southern Railway Company was negligent as alleged in the complaint, then and in that event the plaintiff was also negligent in”. This amendment is allowed pursuant to the provisions of Rule 20(c) of the Rules of Practice in the Court of Appeals. We refrain from discussing the other assignments of error since the questions presented may not arise on retrial. New trial. BbocK and PARKER, JJ., concur.