Herndon v. North Carolina R. Co.

65 S.E.2d 320 (1951)

234 N.C. 9

HERNDON v. NORTH CAROLINA R. CO. et al.

No. 748.

Supreme Court of North Carolina.

June 7, 1951.

*322 Claude V. Jones and Egbert L. Haywood, Durham, for plaintiff, appellant.

W. T. Joyner, Raleigh, Spears & Hall, Durham, H. E. Powers, Raleigh, and Marshall T. Spears, Jr., Durham, for defendants, appellees.

JOHNSON, Justice.

Assuming but not deciding that the evidence offered below made out a prima facie case of actionable negligence against the defendants, nevertheless, it is manifest from the evidence adduced that plaintiff's intestate failed to exercise due care under the surrounding circumstances for his own safety and that such failure contributed to, and was a proximate cause of, his death. The case is controlled by the principles explained and applied in Carruthers v. Southern Ry. Co., 232 N.C. 183, 59 S.E.2d 782; Bailey v. North Carolina R. Co., 223 N.C. 244, 25 S.E.2d 833; McCrimmon v. Powell, 221 N.C. 216, 19 S.E.2d 880; Godwin v. Atlantic Coast Line R. Co., 220 N.C. 281, 17 S.E.2d 137; Miller v. North Carolina R. Co., 220 N.C. 562, 18 S.E.2d 232. See notes and comments: 29 N.C.L.R., p. 301 et seq.

In Godwin v. Atlantic Coast Line R. Co., supra, 220 N.C. 281, page 285 et seq. 17 S.E.2d 137, 139, a nonsuit was sustained where it appeared from the plaintiff's testimony that she started her car and drove a distance of about 20 feet across two tracks and onto a third track in front of an approaching train. In delivering the opinion for the Court, Stacy, C. J., had this to say: "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.* * *

"In the application of this rule it 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 in relying upon such failure or in assuming that no train was approaching. It is still his duty to keep a proper lookout. * * * `A traveler on the highway, before crossing a railroad track, as a general rule, is required *323 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 Carruthers v. Southern Ry. Co., supra, 232 N.C. 183, 59 S.E.2d 782, a nonsuit was affirmed where it appeared that at a point about 24 feet from the track the plaintiff's intestate had an unobstructed view up the railroad for 700 feet and that the train approached the crossing without giving any signal or warning.

In Miller v. North Carolina R. Co., supra, 220 N.C. 562, bot. page 564 et seq., 18 S.E.2d 232, at page 234, Stacy, C. J., again speaking for the Court, said: "It is [well] established by all the evidence that the plaintiff started his car and drove a distance of eight or ten feet onto the crossing in front of an on-coming train, which he should have seen in the exercise of reasonable care. This was negligence on his part which contributed to the injury. * * *"

In Bailey v. North Carolina R. Co., supra, 223 N.C. 244, 25 S.E.2d 833, it was held that even though it appeared that the defendant was negligent in failing to give warning of the approach of its train, in exceeding the speed limit fixed by municipal ordinance and in allowing the railroad bed to become rough by reason of holes therein and rails protruding 2½ to 3 inches above the roadbed, judgment of nonsuit was proper, since the evidence disclosed that plaintiff's intestate drove on the track in front of a train when he had an unobstructed view down the track for several hundred yards.

In the instant case, the evidence shows unmistakably that the intestate had a clear, unobstructed view of several hundred feet along the track in the direction of the approaching train. The only reasonable inferences deducible from the evidence are that he either (1) looked, saw the train, and gambled on his chance of crossing in safety; (2) looked and failed to see the train; or (3) failed to look before proceeding forward onto the track. In either of these events, he is chargeable as a matter of law with negligence proximately causing or contributing to his death. Carruthers v. Southern Ry. Co., supra.

It was a tragic, regrettable occurrence, but this record impels the conclusion that the defendants should not be required to respond in damages.

The judgment below is

Affirmed.