Quinn Ex Rel. Quinn v. Atlantic & Yadkin Railway Co.
195 S.E. 85
N.C.
1938
Check Treatment
Stacy, C. J.

The defendant’s demurrer to the evidence or motion for judgment of nonsuit was properly overruled on authority of Brown v. R. R., 208 N. C., 57, 179 S. E., 25, and Bagwell v. R. R., 167 N. C., 611, 83 S. E., 814.

The court instructed the jury that if the negligence of Simmons was the sole proximate cause of plaintiff’s injury, she could not recover of the railway company. In this, there was no error. Powers v. Sternberg, ante, 41. He further gave four tests to be applied in determining whether Simmons’ negligence was the sole proximate cause of plaintiff’s injury. One was: “The negligence of the driver must be palpable and gross.” In this, there was error. Smith v. Sink, 211 N. C., 725, 192 S. E., 108. It is true, the court was here quoting from Hinnant v. R. R., 202 N. C., 489, 163 S. E., 555, but what was said in that case was addressed to the question of nonsuit, and not to matters for the jury. Moreover, the language may be inexact, or too strong, even on demurrer to the evidence. It is enough if the negligence of the driver be the sole proximate cause of the injury. Powers v. Sternberg, supra; Herman v. R. R., 197 N. C., 718, 150 S. E., 361.

The court also instructed the jury that Simmons “had a right to assume that reasonable and timely notice of the approach of defendant’s train would he given.” And further: “It was the duty of the defendant *51 railway company to keep its right of way adjacent to tbe crossing reasonably free from shrubs, vines, trees, houses, fences and other obstructions, so that the driver of the car in which the plaintiff was riding . . . would or could have had an unobstructed view of its railroad train approaching from the north, and if the defendant railway company negligently failed to keep said right of way reasonably free from obstructions, . . . or if the plaintiff was prevented from seeing it (the train) and was thereby lulled into security, ... it would be your duty to answer the first issue 'Yes.’ ”

These instructions would seem to be morje favorable to the plaintiff than any heretofore sanctioned by the decisions or as warranted by the circumstances of the case. We have said that a traveler has the right to expect timely warning, Norton v. R. R., 122 N. C., 910, 29 S. E., 886, but the failure to give such warning would not justify the traveler in relying upon such failure or in assuming that no train was approaching. It is still his duty to keep a proper lookout. Harrison v. R. R., 194 N. C., 656, 140 S. E., 598; Holton v. R. R., 188 N. C., 277, 124 S. E., 307. “A traveler on the highway, before crossing a railroad track, as a general rule, is required to look and listen to ascertain whether a train is approaching; and the mere omission of the trainmen to give the ordinary or statutory signals will not relieve him of this duty.” Fourth headnote, Cooper v. R. R., 140 N. C., 209, 52 S. E., 932.

Nor has it been held that a traveler is entitled to “an unobstructed view” of a train as it approaches a crossing, or that he may be “lulled into security” by an obstructed view. Moore v. R. R., 201 N. C., 26, 158 S. E., 556; Perry v. R. R., 180 N. C., 290, 104 S. E., 673. “A railroad crossing is itself a notice of danger, and all persons approaching it are bound to exercise care and prudence, and when the conditions are-such that a diligent use of the senses would have avoided the injury, a failure to use them constitutes contributory negligence and will be so-declared by the Court” —Brown, J., in Coleman v. R. R., 153 N. C., 322, 69 S. E., 251.

The pertinent rules applicable to crossing cases are set out in Johnson v. R. R., 163 N. C., 431, 79 S. E., 690. They have been repeated in a number of later decisions. It would only be a matter of repetition to enumerate them here again. Suffice it to say the last of the foregoing instructions, which defendant assigns as error, is not supported by the rules there stated. This was not a blind crossing. ■

The evidence on behalf of the defendant is in sharp conflict with that of the plaintiff. It tends to show an unobstructed view and timely warning of the approaching train. This makes it a case for the jury.

The negligence of Simmons, the driver of the car, is not seriously disputed. Eller v. R. R., 200 N. C., 527, 157 S. E., 800. Whether his. *52 negligence was the sole proximate cause of plaintiff’s injury is the battleground of debate. This case, we think, falls on one side of the line, while Powers v. Sternberg, supra, falls on the other. The two are borderline cases.

The remaining exceptions may not arise on another hearing, hence present rulings thereon are pretermitted.

The defendant is entitled to a new trial. It is so ordered.

New trial.