Jenkins v. Atlantic Coast Line Railroad Company

127 S.E.2d 778 (1962)

258 N.C. 58

Thomas Jefferson JENKINS v. ATLANTIC COAST LINE RAILROAD COMPANY.

No. 306.

Supreme Court of North Carolina.

October 31, 1962.

*779 R. S. Langley, Kinston, Robert D. Wheeler, Grifton, for plaintiff, appellant.

Bland & Freeman, By W. Powell Bland, Goldsboro, Wallace & Wallace, By F. E. Wallace, Jr., Kinston, for defendant, appellee.

HIGGINS, Justice.

The record does not disclose the legal ground upon which the trial judge based the nonsuit. The judgment must be sustained, however, if the evidence fails to show the defendant's negligence or does affirmatively show the plaintiff's contributory negligence as a matter of law. Carter v. Atlantic Coast Line R. R., 256 N.C. 545, 124 S.E.2d 561. In passing on the sufficiency of the evidence to survive the motion for nonsuit, we must resolve all conflicts in the testimony in the plaintiff's favor. Assuming the trial court concluded, therefore, the evidence presented a jury question on the issue of the defendant's negligence, nevertheless the plaintiff's own evidence shows his contributory negligence as a matter of law. If, as his own witness testified, the view south along the track was obstructed, he knew about the obstruction. Reason is not suggested why he did not proceed one block further north along the highway which paralleled the railroad track and cross at the Seventh Street crossing as his witness Dickerson did on this same occasion. Dickerson was also hauling gravel from the same dump to the same delivery point for the same employer.

The evidence does not even suggest the plaintiff stopped to look or listen, but apparently trusted to blind luck and ran into the train. The noise of an engine pulling a 10-wheel truck, weighing 23 tons, should be enough to put the driver on guard not to rely solely on a whistle or a bell, especially at train time. The driver failed to use any sort of reasonable precaution for his own safety. His negligence appears as a matter of law. "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." Godwin v. Atlantic Coast Line R. R., 220 N.C. 281, 17 S.E.2d 137. See also, Carter v. Atlantic Coast Line R. R., supra; Arvin v. McClintock, 253 N.C. 679, 118 S.E.2d 129; Irby v. Southern Ry. Co., 246 N.C. 384, 98 S.E.2d 349, 70 A.L.R. 2d 1.

For the reasons assigned, the judgment entered in the court below is

Affirmed.