Annotate this Case

117 S.E.2d 844 (1961)

253 N.C. 746

Harvey W. MATTINGLY v. NORTH CAROLINA RAILROAD COMPANY and Southern Railway Company.

No. 233.

Supreme Court of North Carolina.

January 20, 1961.

*847 Sedberry, Sanders & Walker, Charlotte, for plaintiff-appellee.

W. T. Joyner, Raleigh, and Robinson, Jones & Hewson, Charlotte, for defendants-appellants.

WINBORNE, Chief Justice.

Defendants stress for error the overruling of their motion for judgment as of nonsuit at the close of the plaintiff's evidence. In such case the evidence is to be viewed in the light most favorable to the plaintiff, giving to him the benefit of every reasonable inference to be drawn therefrom, and assuming to be true all the facts in evidence tending to support his cause of action. Ervin v. Cannon Mills Co., 233 N.C. 415, 64 S.E.2d 431; Clontz v. Krimminger, 253 N.C. 252, 116 S.E.2d 804.

In order to establish a case of actionable negligence in a suit like the present, the plaintiff must show: First, that there has been a failure to exercise proper care in the performance of some legal duty which the defendant owed the plaintiff, under the circumstances in which they were placed; and, second, that such negligent breach of duty was the proximate cause of the injurya cause that produced the result in continuous sequence and without which it would not have occurred, and one from which any man of ordinary prudence could have foreseen that such a result was probable under all the facts as they existed. Ramsbottom v. Atlantic Coast Line R. R. Co., 138 N.C. 38, 41, 50 S.E. 448.

It is also a general rule of law in North Carolina "that the operator of a motor vehicle must exercise ordinary care, that is, that degree of care which an ordinarily prudent person would exercise under similar circumstances. And in the exercise of such duty it is incumbent upon the operator of a motor vehicle to keep same under control, and to keep a reasonably careful lookout * * *." Smith v. Rawlins, 253 N.C. 67, 116 S.E.2d 184, 185; Clontz v. Krimminger, 253 N.C. 252, 116 S.E.2d 804.

It would seem, therefore, that when the evidence of the plaintiff is tested by the rules laid down by this Court that the defendants' motion for nonsuit should have been granted. The plaintiff's own *848 evidence shows that the railroad cross-over was smooth and straight, and not in disrepair. Indeed, plaintiff failed to introduce any evidence tending to show negligence on the part of the defendant railroads in maintaining the crossing. The clue as to the cause of plaintiff's running off the road is stated by him. He testified that he was unfamiliar with the crossing and "misjudged the turn to the right" and as a result his car ended up "lodged in the soft gravel" off the asphalt crossing.

When the evidence, as narrated above, is considered it compels the conclusion that the plaintiff failed to keep a proper lookout and contributed to his own injury. "It is the duty of the driver of a motor vehicle not merely to look, but to keep an outlook in the direction of travel, and he is held to the duty of seeing what he ought to have seen." Wall v. Bain, 222 N.C. 375, 23 S.E.2d 330, 333.

However, it is the plaintiff's contention, that notwithstanding any contributory negligence on his part, the fact that his car was stalled near the railroad tracks was apparent, or in the exercise of due care should have been apparent, to the engineer of the defendants' train in time to have stopped the train and avoided the collision in other words, that the defendants had the last clear chance to avoid injury to plaintiff's car.

We cannot agree with this contention. The plaintiff's car was not on the tracks, but off the tracks with its headlights shining away from the tracks. Furthermore, plaintiff's witness Crowell testified substantially as follows concerning the flashlight warning signal: "* * * When I was waving this flashlight, I waved it from one side to the other across my body, more or less in the same plane with the ground. When I waved that flashlight that way, the beam of the light was only visible to someone standing in front of it at any distance, only once in every arc. It was not visible when it was over at one side or the other * * * it could be seen as a clear light like a single light bulb * * * We tested it in that manner and you can't see the beam except when it comes in directly with you. You can't see the arc on each side * * *."

Appearances are governed by the situation as it appears to the engineer, not to the plaintiff. As is said in Redmon v. Southern R. R. Co., 195 N.C. 764, 143 S.E. 829, 832: "The doctrine does not apply to trespassers and licensees upon the tracks of a railroad, who, at the time, are in apparent possession of their strength and faculties, the engineer of the train producing the injury, having no information to the contrary. Under such circumstances the engineer is not required to stop his train or even slacken its speed, for the reason that he may assume until the very last moment of impact that the pedestrian will use his faculties for his own protection and leave the track in time to avoid injury."

Furthermore, this Court has held that a speed of sixty miles per hour on the part of a train traveling through a rural section, nothing else appearing, is not unlawful or negligent. See Jeffries v. Powell (Branch v. Powell) 221 N.C. 415, 20 S.E.2d 561. In the present case the plaintiff has introduced no evidence tending to show that the speed of the train would come within the exception.

In short, there is no evidence in the record that the engineer knew, or by the exercise of due care could have known, that plaintiff's automobile was stranded in a position of peril. As is held in Mercer v. Powell, 218 N.C. 642, 12 S.E.2d 227, the burden is upon the party invoking the doctrine of last clear chance to prove beyond speculation or conjecture every material fact necessary to support issues of (1) helpless condition of plaintiff, (2) that the defendant saw or in the exercise of due care could have seen him and stopped in time to avoid the injury, and (3) that this failure to keep a proper lookout was one of the proximate causes of the injury.

In the instant case plaintiff placed his car in a dangerous position, but there is no evidence *849 that the defendants saw it or should have seen or discovered it in time to avoid the collision. Temple v. Hawkins, 220 N.C. 26, 16 S.E.2d 400; Ingram v. Smoky Mountain Stages, Inc., 225 N.C. 444, 35 S.E.2d 337.

For reasons stated the judgment from which defendants appeal is