195 S.E. 85 | N.C. | 1938
Civil action to recover damages for personal injuries, alleged to have been caused by the joint and concurrent negligence of the defendants.
The record discloses that on the afternoon of 7 November, 1935, plaintiff and a student friend were riding as invited guests with C. W. Simmons in his Terraplane automobile when it was hit by a train operated by the defendant railway company at what is known as the Cornwallis Road crossing in the city of Greensboro, resulting in serious injury to plaintiff. The purpose of the trip was to give the young ladies a ride around the city. C. W. Simmons was at the time employed by defendant partnership, Oettinger Lumber Company.
It appears from the plaintiff's evidence that the train approached the crossing at a speed of 25 or 30 miles an hour without signals or warning of any kind; and that plaintiff's view was obstructed by reason of a fence, shrubbery, rosebushes and bus station on defendant's right of way.
It is also in evidence that C. W. Simmons stopped his automobile 40 or 50 feet from the crossing; neither saw nor heard the train; proceeded from this point, in second gear, at a speed of 12 to 15 miles an hour, and he says: "The first knowledge that I had of the presence of this engine and train was when I was on the track and it hit me. . . . That was the first time that I knew there was a train anywhere about."
The automobile was equipped with a radio, but was not turned on according to plaintiff's testimony. Defendant's evidence is, that immediately after the collision it was playing loud enough to interfere with conversations between persons standing near the car.
Defendant's evidence is also to the effect that the fence, shrubbery and rosebushes on defendant's right of way were not more than five feet high; *50 that the view from the highway was not obstructed, and that ample and timely warning was given of the train's approach.
Upon the call of the case for trial, the plaintiff suffered a voluntary nonsuit as to the defendant partnership, Oettinger Lumber Company, as C. W. Simmons was not about the business of his employers at the time of the injury. Liverman v. Cline,
After the evidence was in, the plaintiff announced that she would take a voluntary nonsuit as to C. W. Simmons. Defendant railway company objected; objection overruled; exception.
The defendant demurred to the evidence and moved for judgment of nonsuit. Overruled; exception.
The case was then submitted to the jury on the usual issues of negligence, contributory negligence and damages, which resulted in verdict and judgment for plaintiff.
Defendant railway company appeals, assigning errors.
The defendant's demurrer to the evidence or motion for judgment of nonsuit was properly overruled on authority of Brown v. R. R.,
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,
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 be given." And further: "It was the duty of the defendant *51 railway company to keep its right of way adjacent to the 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 more 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.,
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.,
The pertinent rules applicable to crossing cases are set out in Johnsonv. R. R.,
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.,
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.
