Collingwood v. Winston-Salem Southbound Ry. Co.

59 S.E.2d 584 (1950)

232 N.C. 192

COLLINGWOOD v. WINSTON-SALEM SOUTHBOUND RY. CO.

No. 606.

Supreme Court of North Carolina.

May 24, 1950.

*585 H. C. Turner, Albemarle, for plaintiff appellee.

R. L. Smith & Sons, Albemarle, and Craige & Craige, Winston-Salem, for defendant appellant.

DEVIN, Justice.

The plaintiff's evidence was sufficient to carry the case to the jury on the issue of defendant's negligence, but it is contended that defendant's motion for judgment of nonsuit should have been sustained for the reason that the contributory negligence of the plaintiff conclusively appears.

However, we think the issue of contributory negligence was also one for the jury. Coltrain v. Atlantic Coast Line R. R. Co., 216 N.C. 263, 4 S.E.2d 853; Caldwell v. Southern R. R. Co., 218 N.C. 63, 10 S.E.2d 680. The court properly could not sustain the motion to nonsuit on this ground unless the testimony tending to prove contributory negligence was so clear that no other conclusion reasonably could be drawn therefrom. Winfield v. Smith, 230 N.C. 392, 53 S.E.2d 251; Dawson v. Seashore Transportation Co., 230 N.C. 36, 51 S.E.2d 921; Bundy v. Powell, 229 N.C. 707, 51 S.E.2d 307; Atkins v. White Transp. Co., 224 N.C. 688, 32 S.E.2d 209; Hampton v. Hawkins, 219 N.C. 205, 13 S.E.2d 227; Cole v. Koonce, 214 N.C. 188, 198 S.E. 637.

Plaintiff testified that at the time he approached the crossing it was almost dark, 5:40 p.m. December 17, and he had already turned on the lights on his automobile; that as he came to the crossing he slowed down almost to a complete stop and looked and listened for a train, and did not see or hear anything; that just as he drove on the track suddenly light flashed up from the on-coming locomotive, which, connected only with a tender, was moving noiselessly down grade, and a blast from the whistle was blown as he was struck; that while he was familiar with the crossing and the view in daylight was unobstructed, darkness at the time obscured the view of an approaching unlighted locomotive, and no warning signal of any kind was given. Considering his evidence in the light most favorable for him, we think the motion for judgment of nonsuit properly denied.

Defendant assigns error in the charge of the court in that in stating generally the law as to the correlative duties of drivers of automobiles and railroad engines on approaching a grade crossing, the court stated principles of law based on facts which had *586 no relation to those in evidence in this case. It is urged that this tended to suggest consideration by the jury of matters not in evidence, all to the prejudice of the defendant.

While it was the duty of the court to confine his instructions to the law arising on the evidence in the case on trial, G.S. § 1-180, an examination of the entire charge of the court in the light of the evidence and the contentions of the litigants leaves us with the impression that no prejudicial effect from the instructions complained of is apparent, and that the verdict was not improperly influenced thereby. The burden is on the appellant not only to show error, but also to make it appear that the error complained of was material with resultant harm to its cause. Collins v. Lamb, 215 N.C. 719, 2 S.E.2d 863.

We have examined the other exceptions noted by defendant and brought forward in its assignments of error, but do not find them of sufficient moment to justify setting aside the verdict and judgment. The result will not be disturbed.

In the trial we find

No error.