Lyday v. Southern Railway Company

117 S.E.2d 778 (1961)

253 N.C. 687

Paul Edward LYDAY v. SOUTHERN RAILWAY COMPANY and E. C. Kerstein.

No. 95.

Supreme Court of North Carolina.

January 20, 1961.

*781 Williams, Williams & Morris, James N. Golding, Asheville, for plaintiff-appellant.

W. T. Joyner, Raleigh, Ward & Bennett, Asheville, for defendant-appellee.

DENNY, Justice.

The plaintiff insists that the permit introduced in evidence was not for the removal of his trailer. Be that as it may, there is no evidence introduced in the trial below tending to show that the plaintiff or his agent, Revell, obtained any permit to move the plaintiff's trailer over Jim's Branch Road. Furthermore, there is no contention on the part of the plaintiff that any such permit was ever requested or obtained for such purpose. The permit obtained by Revell on 9 October 1959 only authorized the removal of a house trailer from Asheville to Black Mountain over route US 70.

The pertinent statutes with respect to the size of vehicles permitted to be operated on highways under the control of the North Carolina State Highway Commission without a special permit, are: G.S. § 20-116, "(a) The total outside width of any vehicle * * * shall not exceed ninetysix inches, except as otherwise provided in this section: * * * (e) No combination of vehicles coupled together shall consist of more than two units and no such combination of vehicles shall exceed a total length of fifty feet inclusive of front and rear bumpers * * *. Provided, however, that a combination of a house trailer used as a mobile home, together with its towing vehicle, shall not exceed a total length of fifty-five (55) feet exclusive of front and rear bumpers. * * *" G.S. § 20-119, "Special permits for vehicles of excessive size or weight. The State Highway and Public Works Commission may, in their discretion, upon application in writing and good cause being shown therefor, issue a special permit in writing authorizing the applicant to operate or remove a vehicle *782 of a size or weight exceeding a maximum specified in this article upon any highway under the jurisdiction and for the maintenance of which the body granting the permit is responsible. Every such permit shall be carried in the vehicle to which it refers and shall be open to inspection by any peace officer; and it shall be a misdemeanor for any person to violate any of the terms or conditions of such special permit. * * *"

"The violation of a statute or ordinance, intended and designed to prevent injury to persons or property, whether done intentionally or otherwise, is negligence per se, and renders one civilly liable in damages, if its violation results in injury to another; for, in such cases, the statute or ordinance becomes the standard of conduct or the rule of the prudent man." State v. Cope, 204 N.C. 28, 167 S.E. 456, 458; Ham v. Greensboro Ice & Fuel Co., 204 N.C. 614, 169 S.E. 180; McNair v. Richardson, 244 N.C. 65, 92 S.E.2d 459. See also Aldridge v. Hasty, 240 N.C. 353, 82 S.E.2d 331; Holland v. Strader, 216 N.C. 436, 5 S.E.2d 311.

Certainly, an attempt to move the plaintiff's trailer over and along Jim's Branch Road without a permit was a misdemeanor. Furthermore, the statute requiring a permit before moving plaintiff's trailer over or upon any highway controlled by the North Carolina State Highway Commission was enacted for the protection of the traveling public. But whether such violation constituted contributory negligence depends on whether or not such violation was a proximate cause or one of the proximate causes of the damages suffered by the plaintiff. McNair v. Richardson, supra; Aldridge v. Hasty, supra.

All the plaintiff's evidence tends to show that Revell had considerable difficulty in maneuvering the tractor-trailer into a position after leaving U. S. Highway 70, so that the tractor-trailer could be pulled across the railway crossing. The plaintiff testified that Revell stopped at the crossing about ten seconds before entering it. According to the evidence, when Revell first entered the crossing, the rear nine feet and eight inches of the trailer would still have to be on Highway 70; the plaintiff was in his jeep to the rear of the trailer, and Mr. Maney was in an automobile to the rear of plaintiff's jeep.

The evidence further tends to show that the driver of the tractor-trailer entered the crossing at almost the same moment the defendant's train appeared around the curve some 450 feet east of the crossing. Certainly a driver of an ordinary size vehicle would be guilty of contributory negligence if he failed to get out of the way of a train which could or should have been seen at a distance of 450 feet from the crossing. Herndon v. North Carolina R. R., 234 N.C. 9, 65 S.E.2d 320. Here, the 45 foot trailer was only half way across the crossing when struck by defendant's train.

In Godwin v. Atlantic Coast Line R. R., 220 N.C. 281, 17 S.E.2d 137, 139, in delivering the opinion of the Court, Stacy, C. J., said: "It is the prevailing and permissible rule of practice to enter judgment of nonsuit in a negligence case, when it appears from the evidence offered on behalf of the plaintiff that his own negligence was the proximate cause of the injury or one of them. * * * The plaintiff thus proves himself out of court. * * * (I)t is recognized that `a railroad crossing is itself a notice of danger, and all persons approaching it are bound to exercise care and prudence, and, when the conditions are such that a diligent use of the senses would have avoided the injury, a failure to use them constitutes contributory negligence and will be so declared by the court.' * * * We have said that a traveler has the right to expect timely warning, * * * but the failure to give such warning would not justify the traveler relying upon such failure or in assuming that no train was approaching. It is still his duty to keep a *783 proper lookout. * * * `A traveler on the highway, before crossing a railroad track, as a general rule, is required to look and listen to ascertain whether a train is approaching; and the mere omission of the trainmen to give the ordinary or statutory signals will not relieve him of this duty.'"

In the case of Moore v. Atlantic Coast Line R. R. Co., 201 N.C. 26, 158 S.E. 556, 557, our Court said: "When approaching a public crossing the employees in charge of a train and a traveler upon the highway are charged with the mutual and reciprocal duty of exercising due care to avoid inflicting or receiving injury, due care being such as a prudent person would exercise under the circumstances at the particular time and place. `Both parties are charged with the mutual duty of keeping a careful lookout for danger; and the degree of diligence to be used on either side is such as a prudent man would exercise under the circumstances of the case in endeavoring to perform his duty.' Continental Improvement Co. v. Stead, 95 U.S. 161, 24 L. Ed. 403 * * *."

The Court in its opinion in the Moore case quoted with approval from the case of Baltimore & O. Railroad Company v. Goodman, 275 U.S. 66, 48 S. Ct. 24, 72 L. Ed. 167, where it is said: "When a man goes upon a railroad track he knows that he goes to a place where he will be killed if a train comes upon him before he is clear of the track. He knows that he must stop for the train not the train stop for him. In such circumstances it seems to us that if a driver cannot be sure otherwise whether a train is dangerously near he must stop and get out of his vehicle, although obviously he will not often be required to do more than to stop and look. It seems to us that if he relies upon not hearing the train or any signal and takes no further precaution he does so at his own risk."

One of the plaintiff's witnesses testified that he saw the defendant's train as soon as it could be seen; that it was blowing as it rounded the curve. All of plaintiff's evidence tends to show that the approaching train could not be seen for a distance of more than 450 feet from Jim's Branch Road Crossing. The defendant's train, if traveling at 50 miles an hour, its minimum speed according to the evidence offered by the plaintiff, would require less than six and one-quarter seconds to travel 450 feet. If the defendant's train was traveling at the minimum speed of only 35 miles an hour, as its evidence tends to show, it would have required only nine seconds for the train to travel the 450 feet from the point where it could be seen to the crossing. Yet the tractor-trailer traveling at the minimum speed fixed by the plaintiff's evidence, would require approximately twenty seconds to move across the crossing from the time it reached the north rail of the railroad track. At the maximum speed fixed by the plaintiff's witnesses at which the tractor-trailer was being operated, it would have required ten seconds of travel time to get the tractortrailer across the track of defendant's railroad. Moreover, there is no evidence tending to show that the engineer of defendant's train could have stopped the train before colliding with plaintiff's trailer after the engineer saw the tractor-trailer on the crossing.

The tractor-trailer combination was of such size and length that it could not be legally moved over any highway under the control of the State Highway Commission without a special permit. The equipment was heavy and cumbersome, wholly incapable of rapid acceleration under the circumstances; the crossing was narrow, the road approaching the crossing was crooked and difficult to negotiate due to the combined length of the tractor-trailer. Therefore, under the facts as revealed by this record, we are of the opinion that it was the duty of the plaintiff to notify the railroad before undertaking to move its tractor-trailer across this particular crossing, and to have requested a time when the equipment could be moved across said crossing in safety, or to have sent someone down to the curve *784 in the railroad to ascertain whether or not the crossing could be made in safety. T. E. Ritter Corporation v. Rose, 200 Va. 736, 107 S.E.2d 479; Schwesinger v. Hebert, Or., 348 P.2d 249. Neither the plaintiff nor the driver of the tractor-trailer had the right to assume that no train was approaching or would approach during the unusual time required to move this slow-moving equipment across the track of defendant's railroad.

For the purposes of this appeal, we have assumed, without deciding, that the defendant was negligent in failing to give timely notice of the approach of its train to Jim's Branch Road Crossing. Even so, for the reasons stated, we are constrained to uphold the ruling of the court below.

Judgment of the court below is

Affirmed.