Miller v. Davis

71 N.C. App. 200 | N.C. Ct. App. | 1984

WEBB, Judge.

The holding of Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E. 2d 419 (1979), is that if the defendant in a negligence action makes a motion for summary judgment and supports it by papers which forecast evidence which would entitle him to a directed verdict if offered at trial, the Court must grant the motion for summary judgment unless the plaintiff offers a forecast of evidence which would be sufficient to require the denial of a motion for directed verdict if the evidence were introduced at trial. If the forecast of evidence in this case is such that if the evidence were offered at trial the defendants would be entitled to a directed verdict in their favor the judgment of the superior court must be affirmed.

There was sufficient evidence forecast in this case for a jury to find that the defendants were negligent. The question is whether the evidence is such that the only reasonable inference a jury could make from the evidence is that Dr. Miller was contributorily negligent. There have been many cases dealing with the contributory negligence of a motor vehicle operator at a railroad crossing. See Cox v. Gallamore, 267 N.C. 537, 148 S.E. 2d 616 (1966); Ramey v. R.R., 262 N.C. 230, 136 S.E. 2d 638 (1964); Carter v. R.R., 256 N.C. 545, 124 S.E. 2d 561 (1962); Arvin v. McClintock, 253 N.C. 679, 118 S.E. 2d 129 (1961); Faircloth v. R.R., 247 N.C. 190, 100 S.E. 2d 328 (1957); Irby v. R.R., 246 N.C. 384, 98 S.E. 2d 349 (1957); Dowdy v. R.R., 237 N.C. 519, 75 S.E. 2d 639 (1953); Jones v. R.R., 235 N.C. 640, 70 S.E. 2d 669 (1952); Parker v. R.R., 232 N.C. 472, 61 S.E. 2d 370 (1950) and Jeffries v. Powell, 221 N.C. 415, 20 S.E. 2d 561 (1942). We believe the general rule from these cases is that a motorist is contributorily negligent in approaching a railroad track if he does not see what he could have seen even if he had to come to a stop to do so. In Mansfield v. Anderson, 299 N.C. 662, 264 S.E. 2d 51 (1980); Neal v. Booth, 287 N.C. 237, 214 S.E. 2d 36 (1975); and Johnson v. R.R., 257 N.C. 712, 127 S.E. 2d 521 (1962) our Supreme Court held the plaintiffs were not barred by this rule. In Mansfield the evidence most favorable to the plaintiffs was that the driver had to be within one foot of the track to have an unobstructed view so that he could see a sufficient distance up the track to see the approaching train. In Neal the driver had to be on a side track and within twenty-one feet of the main track upon which the train was approaching before he had an unobstructed view. In Johnson the driver could have stopped just short of the track and gained a clear view of the approaching train. The Supreme Court held the driver was not con-tributorily negligent as a matter of law because there was an obstruction barring the driver’s view until he was just short of the track and the warning light was not operating.

We believe we are bound by Baker v. R.R., 202 N.C. 478, 163 S.E. 452 (1932) to hold it was error to allow the defendants’ motion for summary judgment. In that case, as the driver approached the track he had an unobstructed view to his right 67 feet from the track. There was an obstruction to his left which prevented a view of the track until he was “nearly on the track.” He first looked to his right and then looked to his left until he reached the track at which time a train approaching from the right struck him. Our Supreme Court held the question of contributory negligence was for the jury. The Court said, “[It] cannot be said that plaintiff is barred of recovery as a matter of law because he gave more attention to the direction where the probability of danger was greatest.” We believe Baker holds that if there is an obstruction on one side of the track at which the driver looks until he can see around the obstruction it is not contributory negligence as a matter of law for him not to observe a train approaching from the opposite direction while he is so looking. We believe that Baker like Mansfield, Neal and Johnson, is an exception to the general rule. We hold that this case fits that exception.

We reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

Judges Hedrick and Hill concur.