Kinlaw v. NORFOLK SOUTHERN RAILWAY COMPANY

152 S.E.2d 329 (1967)

269 N.C. 110

Annie P. KINLAW, Administratrix of the Estate of Herman Floyd Kinlaw and the United States Fidelity and Guaranty Company v. NORFOLK SOUTHERN RAILWAY COMPANY.

No. 613.

Supreme Court of North Carolina.

January 20, 1967.

*333 Neill Mck. Ross, Lillington, and D. K. Stewart, Dunn, for plaintiff appellants.

R. N. Simms, Jr., Raleigh, for defendant appellee.

LAKE, Justice.

The allegation in the complaint that the plaintiff is the duly qualified and acting administratrix of the deceased is denied in the answer and the record does not disclose any evidence that she was so appointed. Nothing else appearing, the judgment of nonsuit would have been proper on this ground. Graves v. Welborn, 260 N.C. 688, 133 S.E.2d 761, 3 A.L.R.3d 1225; Carr v. Lee, 249 N.C. 712, 107 S.E.2d 544. However, the agreed statement of the case on appeal states, "This is a civil action instituted by Annie P. Kinlaw, Administratrix of the Estate of Herman Floyd Kinlaw, deceased." We infer from this that the defendant concedes her due appointment and qualification. See Abernethy v. Burns, 210 N.C. 636, 188 S.E. 97. Consequently, the judgment of nonsuit cannot be sustained upon the ground that the plaintiff is not the party entitled to maintain this action.

To determine whether the plaintiff's evidence shows negligence by the defendant which was the proximate cause of the collision and death, the evidence of the plaintiff must be taken as true, and every reasonable inference favorable to her must be drawn therefrom. Cox v. Gallamore, 267 N.C. 537, 148 S.E.2d 616; Lewis v. Barnhill, 267 N.C. 457, 148 S.E.2d 536; Sink v. Moore, 267 N.C. 344, 148 S.E.2d 265.

So considered, the plaintiff's evidence is sufficient to permit, though not to compel, the inference that the automatic signal lights at the crossing were not flashing, or illuminated, prior to the collision. Her evidence is also sufficient to permit, though not to compel, the inference that the defendant did not blow any whistle, ring any bell, or otherwise give any warning of the approach of the locomotive to the crossing. "[T]estimony that a person nearby who could have heard and did not hear the sounding of a whistle or the ringing of a bell is some evidence that no *334 such signal was given." Johnson & Sons, Inc. v. Southern R. R., 214 N.C. 484, 199 S.E. 704; and see Cox v. Gallamore, supra.

The testimony of the witness Bass is that he heard no whistle or bell as he approached the crossing, went over it and proceeded beyond it. He also testified that he was approximately 150 feet in front of the machine driven by the deceased, which, at the speed at which they were driving, according to his testimony, placed him about seven seconds ahead of the deceased in reaching the crossing. The witness testified that these machines made about the same noise as a diesel powered truck. It could be found by a jury that such a vehicle, proceeding slowly downgrade, would not make sufficient noise to prevent the driver from hearing the whistle or bell of an approaching train. The evidence does not indicate any other vehicle or equipment nearer to the crossing than 400 feet.

Though the complaint alleges that "Immediately to the east of said crossing heavy earth moving equipment was in operation creating unusual and abnormal amounts of noise which tended to over-shadow any noise being made by said locomotive," the answer categorically denies this allegation and alleges, "there was nothing to prevent plaintiff's intestate from * * * hearing the whistle of the train." What would otherwise be a damaging admission in the complaint has thus been obliterated by the answer.

Taking the evidence, together with these allegations in the pleadings, in the light most favorable to the plaintiff, it is sufficient, if believed, to permit a jury to find that the defendant operated its locomotive to and upon this crossing without giving any signal whatever of its approach thereto. There is also ample evidence to support a finding that this was a crossing at which an embankment obstructed the view of a northbound traveler upon the highway, a fact of which the railroad necessarily had notice. The railroad was, therefore, under a duty to give to such traveler notice of the approach of its locomotive to such crossing. If it failed to do so, it was negligent. Cox v. Gallamore, supra, and cases there cited.

This Court has held that the proof of a failure of automatic signals to function at a given moment is not sufficient of itself to show negligence by a railroad. Johnson v. Southern R. R., 255 N.C. 386, 121 S.E.2d 580, 90 A.L.R.2d 344. This is especially true here in view of the allegation in the complaint, admitted in the answer, that Brown Paving Company interfered with the operation of the signals. However, the operation of a locomotive to and upon a blind crossing of a main highway with no notice whatever of its approach is a lack of due care for the safety of users of the highway. The plaintiff's evidence, when considered in the light most favorable to her, is sufficient to support such a finding.

A judgment of nonsuit may not be sustained on the ground of contributory negligence by the deceased unless the plaintiff's own evidence, interpreted in the light most favorable to the plaintiff, shows that negligence by the deceased was one of the proximate causes of his injury and death so clearly that no other conclusion can reasonably be drawn therefrom. Pruett v. Inman, 252 N.C. 520, 114 S.E.2d 360; Bondurant v. Mastin, 252 N.C. 190, 113 S.E.2d 292. We do not have in this record the defendant's version of how the collision occurred and, if we did, it could not be considered upon a motion for judgment of nonsuit except insofar as it might be favorable to the plaintiff.

There is no evidence in this record to show the manner in which the deceased approached the crossing, except that when approximately 150 feet therefrom he was driving at a speed not in excess of 15 miles per hour. He was proceeding on a substantial downgrade with a heavy machine. There is no evidence that he saw, or should have seen, the approaching locomotive in time to *335 stop his machine before it reached the crossing. As above stated, there is no evidence in this record to show that the defendant gave any signal by any means whatever of the approach of the locomotive before it came into the view of the deceased. There is no evidence in this record that the automatic signal lights erected at the crossing were flashing. All the evidence in the record on that point indicated they were not.

In Cox v. Gallamore, supra, there were no automatic signals erected at the crossing. We said there that it is the duty of the driver of a vehicle approaching a crossing, of the existence of which he has notice, to reduce his speed so that he can look along the track and see that no train is approaching before he proceeds onto the crossing. Nothing else appearing, the failure of the driver to operate his vehicle at a speed and with a lookout such that he can bring it to a stop before reaching a crossing in time to collide with an approaching train is negligence by the driver. However, in this record something else appears. Here, the record, accepting the evidence of the plaintiff as true, shows that there were erected at the crossing devices which were designed to give automatic signals of the approach of the train, and upon the device facing the deceased there was a sign directing users of the highway to stop when the flashing lights appeared. The evidence of the plaintiff, if believed, will support the inference that these lights did not work in this instance.

In Johnson v. Southern R. R., supra, Moore, J., speaking for the Court, said:

"The mere momentary failure of an automatic signaling device to operate upon the occasion of an accident is not evidence of negligence on the part of the railroad company. Res ipsa loquitur has no application in such circumstances. But is proper to consider such failure in measuring the care exercised by the traveler in negotiating the crossing, and it is therefore relevant on the question of contributory negligence. A traveler on a highway has the right to place some reliance upon an automatic crossing signal, especially if his view is obstructed. But the fact that an automatic warning signal is not working does not relieve the traveler of the duty to look and listen for approaching trains when from a safe position such looking and listening will suffice to warn him of danger. Where there are obstructions to the view and the traveler is exposed to sudden peril, without fault on his part, and must make a quick decision, contributory negligence is for the jury." (Citations omitted throughout.)

When the Johnson case was again before this Court in 257 N.C. 712, 127 S.E.2d 521, Moore, J., repeated the above statement and added:

"We are of the opinion that the failure of automatic signal lights at a railroad crossing to work has the tendency to abate the ordinary caution of a traveler on the highway, and that he has the right to place some reliance on such failure. In the absence of other timely warning, it would seem that it is an implied permission to proceed in those cases in which the traveler has taken reasonable precautions and made reasonable observations under the circumstances."

There is no evidence in this record to show any failure by the deceased to keep a lookout, or that he approached the crossing at a speed which was unreasonable in the light of the circumstances known to him. The judgment of nonsuit cannot be sustained on the ground of contributory negligence.

There remains to be considered the contention of the appellee that the judgment of nonsuit was proper for the reason that the action was not instituted within the time allowed by G.S. § 1-53. That statute and G.S. § 28-173 were amended in 1951 so as to remove from the latter section the provision previously contained therein fixing the period of time in which an action for damages for wrongful death must be instituted *336 and so as to make such action subject to the two year statute of limitations set forth in G.S. § 1-53. The effect of the amendment was to make the time limitation a statute of limitations and no longer a condition precedent to the right to bring and maintain the action. Graves v. Welborn, supra; McCrater v. Stone & Webster Engineering Corp., 248 N.C. 707, 104 S.E.2d 858.

G.S. 1-593 provides:

"The time within which an act is to be done, as provided by law, shall be computed by excluding the first and including the last day. If the last day is Sunday or a legal holiday, it must be excluded."

G.S. § 103-4 provides that the first Monday in September of each and every year is a public holiday. In Oxendine v. Lowry, 260 N.C. 709, 133 S.E.2d 687, and in Weavil v. Myers, 243 N.C. 386, 90 S.E.2d 733, this Court took judicial notice of the relationship of certain hours to sunrise and sunset on specified dates in North Carolina. Upon the same principle, courts will take judicial notice of the concurrence of days of the week with days of the month in any yearat least, in a year not unreasonably distant. 31A C.J.S. Evidence § 100. Consequently, we take notice of the fact that 2 September 1962, the last day of the two year period beginning with the death of the plaintiff's intestate, was Sunday and that the following day was the first Monday in September, a public holiday. This action was instituted on 4 September 1962 by the issuance of summons and, therefore, was instituted within the time allowed by G.S. § 1-53. Thus, the judgment of nonsuit may not be sustained on the ground of the statute of limitations.

In holding, as we do, that the allowance of the motion for judgment of nonsuit upon the evidence set forth in the record before us was error and that this action must be remanded to the superior court for a new trial, we, of course, do not express any opinion as to what were the facts with reference to this collision. They must be determined upon the evidence which will be presented at the new trial of the action. The credibility of the witnesses who will then testify is to be determined by the jury at that trial. The sufficiency of the evidence then introduced to raise a question for the jury must be determined in the light of that evidence by the judge then presiding.

Reversed.