Gray v. CAROLINA AND NORTHWESTERN RAILWAY CO.

89 S.E.2d 807 (1955)

243 N.C. 107

Delma C. GRAY, Administrator of the Estate of Evelyn Gray Snuggs, deceased, v. The CAROLINA AND NORTHWESTERN RAILWAY COMPANY.

No. 455.

Supreme Court of North Carolina.

November 9, 1955.

*808 Henry C. Doby, Jr., Albemarle, Edward Jerome, Raleigh, for plaintiff-appellant.

W. T. Joyner, Wiley F. Mitchell, Jr., Raleigh, R. L. Smith & Sons, Albemarle, for defendant-appellee.

PER CURIAM.

First: The gravamen of certain of the allegations ordered stricken is that before entering the crossing defendant was under duty to stop its train to ascertain whether running the train across the highway "then and there, would endanger the life of any person thereon," and that failure of defendant to do so was negligence. In the light of the settled principle of law long prevailing in this State that where a railroad track crosses a public highway, though a traveller and the railroad have equal rights to cross, the traveller must yield the right of way to the railroad company in the ordinary course of its business, Johnson v. Seaboard Air Line R. Co., 163 N.C. 431, 79 S.E. 690, the rulings of the court in striking the allegations so specified were proper.

And, second, in the light of the established rule for the admeasurement of damages in cases of wrongful death, G.S. § 28-174, the portions of the allegations in respect thereto were properly stricken.

Hence the judgment from which appeal is taken is

Affirmed.